[2006] KEHC 50 (KLR)
The application was dismissed because the prayers sought were not properly framed and were incapable of being granted. The applicant asked the court to set aside 'dismissed orders' and reinstate them for hearing, but there were no such 'dismissed orders'—only the application itself had been dismissed. The court...
Source-derived case information.
- Citation
- [2006] KEHC 50 (KLR)
- Parties
- Plaintiff: Mosota Otwori; Defendant: Mokua Otwori alias Richard Monari Meroka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 278 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Pleadings and Prayers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mosota Otwori
Plaintiff
Mokua Otwori alias Richard Monari Meroka
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the court can set aside its dismissal orders dated 16th November 2005 and reinstate the dismissed application for hearing.
- 2 Whether the prayers sought in the application are properly framed and capable of being granted.
Ratio Decidendi
The application was dismissed because the prayers sought were not properly framed and were incapable of being granted. The applicant asked the court to set aside 'dismissed orders' and reinstate them for hearing, but there were no such 'dismissed orders'—only the application itself had been dismissed. The court cannot rewrite a litigant's prayers or grant reliefs not specifically sought. Since the application did not properly pray for reinstatement of the dismissed application, and the prayers as framed were not grantable, the court found the application to be without merit and dismissed it.
Court Disposition
application dismissed
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Suit 278 of 1998
MOSOTA OTWORI ……………………….. PLAINTIFF/RESPONDENT
VERSUS
MOKUA OTWORI
alias RICHARD MONARI MEROKA ….….. DEFENDANT/APPLICANT
RULING:
The applicant’s application is under order 9B rule 8 CPR and s. 3 and 3A CPA. Mr. Mokua who argued the application stated that the applicant had filed another application dated 7th October 2005. the same was set down for hearing on 16th November 2005. On that day, Mr. Mokua said he was engaged before Nairobi High Court. He deputized a Mr. Gekonge Advocate to hold his brief. The matter however was not in the cause list. Mr. Gekonge left and Mr. Mokua’s client and clerk were left looking for the file. It was found at noon and taken to court. By then Mr. Gekonge had not returned and Mr. Mogire held Mr. Mokua’s brief and asked for adjournment. It was rejected and application was later dismissed. He pleaded with the court to set the dismissal order aside and reinstate the dismissed application.
Mrs. Asati opposed the application.
I have considered the application with due respect. It does not make any sense at all the way it is drafted. It seeks the following orders:
(i) That the matter herein be certified urgent and same be heard exparte in the first instance due to its nature.
(ii) That the Honourable court be pleased to set aside its dismissal orders dated the 16th of November 2005 and reinstate the same for hearing inter-parties and decided on merit.
(iii) That the costs be in the cause.
The main prayer is No.(ii) which in its present form does not make any sense. The court is being asked “to set aside its dismissed orders dated 16th November 2005. ”
With respect there are no”dismissed orders” which were made on 16th November 2005. On that day the court only dismissed the applicants application. I don’t know if he therefore meant dismissal orders and not dismissal but the court cannot write a litigant’s prayer.
Further the court after setting aside the said “dismissed orders” is being asked to reinstate the same for hearing inter parties. Even if we assume the applicant meant “dismissal orders” there is no way the court can reinstate the same orders and have them heard inter parties. Dismissal can’t be heard in anyway. The prayers therefore are not capable of being granted in their present form. I know Mr. Mokua submitted about reinstating an earlier application but his submissions do not go hand in hand with his prayers. Parties are bound by their pleadings and prayers.
The court cannot grant prayers not sought. The application does not pray to the court to reinstate the dismissed application for hearing.
For the above reason I find application has no merit and dismiss it.
Dated 25th May 2006
KABURU BAUNI
JUDGE
Cc – Mobisa
N/a for Applicant – aware of date
Respondent present