[2008] KEHC 3773 (KLR)
The court held that a notice of motion cannot be filed independently without a main suit. In land matters or simple cases, the proper procedure is to file a plaint, an originating summons, or an originating motion as appropriate. Since the applicant only filed a notice of motion without instituting a main suit, the...
Source-derived case information.
- Citation
- [2008] KEHC 3773 (KLR)
- Parties
- Applicant: Michael Karuku Gaturu; Respondent: Wanjiru Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out
- Legal Topics
- Injunctions, Procedure Without Main Suit, Land Disputes, Notice of Motion Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Karuku Gaturu
Applicant
Wanjiru Kamau
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether a notice of motion can be filed without a main suit in land matters.
- 2 Whether the applicant is entitled to an injunction restraining the respondent from preventing surveyors from accessing the land.
Ratio Decidendi
The court held that a notice of motion cannot be filed independently without a main suit. In land matters or simple cases, the proper procedure is to file a plaint, an originating summons, or an originating motion as appropriate. Since the applicant only filed a notice of motion without instituting a main suit, the application was procedurally defective and could not be entertained. Consequently, the notice of motion was struck out.
Court Disposition
application struck out
Orders
- The notice of motion dated 20 June 2008 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 16 of 2008
1. Land and Environmental Law Division
2. There is no main suit.
3. Subject of application: Land
LR Dagoretti/Mutuini/68
b) prayer for court to issue injunction against respondent from stopping surveyors to come on land.
c) Application 20. 6.08
4. Civil Practice and Procedure.
a) There is no main suit filed
b) Only a notice of motion of 20. 6.08
c) Order L Rule 1 Civil Procedure Rules.
Section 3A Civil Procedure Act.
5. Held:
a) Procedure to file main suit.
b) Notice of motion 20. 6.08 struck out.
6. Advocate – nil
Michael Karuku Gaturu plaintiff/applicant in person – present
Wanjiru Kamau defendant respondent in person - absent
MICHAEL KARUKU GATURA ……………………….. PLAINTIFF
VERSUS
WANJIRU KAMAU …………………………………… RESPONDENT
RULING
APPLICATION TO ISSUE INJUNCTION AGAINST
RESPONDENT STOPPING SURVEYORS TO COME
ON LAND NOTICE OF MOTION 20 JUNE 2008
I: Civil Practice and Procedure.
1. I have before me only a notice of motion dated 20 June 2008 seeking orders of injunction to restrain the respondent from refusing to allow a surveyor to come upon land parcel LR Dagoretti/Mutiini/68.
2. There is no main suit herein.
3. A notice of motion cannot be filed on its own without a main suit. If one wishes to come to court without a plaint being filed in simple matters, or in land matters, an Originating Summons under Order XXXVI may be filed or an Originating Motion depending on the circumstances of the case.
4. The application herein is struck out with no orders as to costs.
DATED THIS 16TH DAY OF JULY 2008 AT NAIROBI.
M. A. ANG’AWA
JUDGE
Michael Karuku Gaturu plaintiff/applicant in person – present
Wanjiru Kamau defendant respondent in person - absent