[2021] KEELC 1310 (KLR)
The court found that the Chamber Summons application was limited to seeking leave for the reference to be heard during the court's vacation period and did not seek an extension of time or any other substantive relief. Since the vacation period had lapsed, the prayers sought were overtaken by events and there were no...
Source-derived case information.
- Citation
- [2021] KEELC 1310 (KLR)
- Parties
- Applicant: Joyce Wanjiru Nyanjui; Applicant: Sarah Wambui Nyanjui; Applicant: Arthur Nyanjui Gichuhi; Respondent: Joseph Chege Gitau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 103 of 2012
- Procedural Posture
- Chamber Summons Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Leave to File Out of Time, Court Vacation Procedure, Reference Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joyce Wanjiru Nyanjui
Applicant
Sarah Wambui Nyanjui
Applicant
Arthur Nyanjui Gichuhi
Applicant
Joseph Chege Gitau
Respondent
Procedural Posture
Chamber Summons Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicants should be granted leave to file reference proceedings during the court's vacation period.
- 2 Whether the application amounts to a request for extension of time.
- 3 Whether the application is overtaken by events and thus incapable of being granted.
Ratio Decidendi
The court found that the Chamber Summons application was limited to seeking leave for the reference to be heard during the court's vacation period and did not seek an extension of time or any other substantive relief. Since the vacation period had lapsed, the prayers sought were overtaken by events and there were no other prayers capable of being granted. The court emphasized that parties must seek the correct remedy in their applications and cannot expect the court to grant relief not expressly sought. Consequently, the application was dismissed as it was no longer relevant or capable of being granted.
Court Disposition
application dismissed
Orders
- The Chamber Summons application dated 26/8/2021 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAKURU
ELC CASE NO. 103 OF 2012
JOYCE WANJIRU NYANJUI
SARAH WAMBUI NYANJUI
(Suing on their behalf and as the legal representatives ofARTHUR
NYANJUI GICHUHI)..........................PLAINTIFFS/APPLICANTS
VERSUS
JOSEPH CHEGE GITAU................DEFENDANT/RESPONDENT
RULING
The Application.
1. By the Chamber Summons dated 26/8/2021 and filed in court on 27/08/2021brought under Part 1 Rule 1 & 2 of the High Court Practice and Procedure Rulesthe plaintiffs sought for the following orders:
1. That the applicant be granted leave to file reference proceedings during the court’s vacation period.
2. That due to the urgency of this matter, the honourable court be pleased to grant leave for the reference to be heard during the vacation period.
3. That costs of this application to abide the outcome of the entire reference proceedings.
2. The application is supported by the sworn affidavit of Koome Gitonga, Advocate, sworn on 26/08/2021. The grounds on the face of the application and the supporting affidavit are that the court is on vacation; that unless the application is heard during that period the applicant stands to suffer and that the respondent will not be prejudiced in any way if the orders sought are granted.
The response
3. The respondent filed his grounds of opposition dated 27/09/2021 on the same date.
Submissions
4. The defendant/respondent filed his submissions on 13/10/2021 while the plaintiffs/applicants filed their submissions on 18/10/2021. I have considered those submissions.
Determination
Upon considering the prayers sought in the application, it is my opinion that they are overtaken by events as they are limited to when the court was on vacation. There are no other prayers in the application capable of being granted now. The application is certainly not for extension of time. It may appear to be mere technicality but in the eyes of this court, perchance there are any shortcomings as to timeliness of filing the reference which is also dated 26/8/2021 they are not capable of being addressed by way of the Chamber Summons that seeks only the indulgence of the court to have matter be heard during the vacation. Parties must seek the proper remedy in applications when they come before court. It is clear from the submissions of the respondent that he objects to the application principally on the basis that the application seeks leave to file a reference out of time; I have found that it is not an application for extension of time.
6. It is therefore this court’s opinion that it cannot go beyond the stated parameters of the Chamber Summons application dated 26/8/2021; This court can not therefore address the main reference application in substance especially owing to the fact that and it is hereby dismissed with no orders as to costs.
DATED, SIGNED AND ISSUED AT NAKURU VIA ELECTRONIC MAIL ON THIS 28TH DAY OF OCTOBER, 2021
MWANGI NJOROGE
JUDGE, ELC, NAKURU