[2023] KEELC 17032 (KLR)
The court found that the dispute at hand is contentious and that the simple procedure of originating summons is not appropriate in the circumstances. Exercising its discretion under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the court allowed the application for review. The...
Source-derived case information.
- Citation
- [2023] KEELC 17032 (KLR)
- Parties
- Plaintiff: Kelvin Mugweru Muchiri; Plaintiff: Dan Mundia Muchiri; Defendant: Lilian Regeria Kageenu; Defendant: Caroline Nkatha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2019
- Procedural Posture
- Review Application / Ruling on Notice of Motion for Review of Prior Court Order
- Outcome
- Application for review allowed. Notice of motion dated September 14, 2022 granted in terms of prayers 1, 2 and 3. Costs in the cause.
- Judges
- MN Gicheru
- Legal Topics
- Review of Court Orders, Originating Summons Procedure, Conversion to Plaint, Contentious Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Mugweru Muchiri
Plaintiff
Dan Mundia Muchiri
Plaintiff
Lilian Regeria Kageenu
Defendant
Caroline Nkatha
Defendant
Procedural Posture
Review Application / Ruling on Notice of Motion for Review of Prior Court Order
Legal Issues
- 1 Whether the court should review its earlier order directing the defendant to file a replying affidavit instead of a defence and counterclaim.
- 2 Whether the procedure of originating summons is appropriate for determining contentious disputes in this case.
- 3 Whether the defence and counterclaim filed on February 1, 2022 should be deemed as duly filed and served.
Ratio Decidendi
The court found that the dispute at hand is contentious and that the simple procedure of originating summons is not appropriate in the circumstances. Exercising its discretion under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the court allowed the application for review. The court held that the defence and counterclaim filed by the defendants should be deemed as duly filed and served, and that the interests of justice would be served by allowing the application. The absence of opposition from the plaintiffs further supported the grant of the orders sought.
Court Disposition
Application for review allowed. Notice of motion dated September 14, 2022 granted in terms of prayers 1, 2 and 3. Costs in the cause.
Orders
- The notice of motion dated September 14, 2022 is allowed in terms of prayers 1, 2 and 3.
- The defence and counterclaim dated and filed on February 1, 2022 is deemed as duly filed and served.
Full Case Text
Judgment text and source record
25 paragraphs
Muchiri & another (Suing as the legal representatives of the Estate of Benson Mugweru Muchiri) v Kageenu & another (Environment & Land Case 49 of 2019) [2023] KEELC 17032 (KLR) (24 April 2023) (Ruling)
Neutral citation: [2023] KEELC 17032 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 49 of 2019
MN Gicheru, J
April 24, 2023
Between
Kelvin Mugweru Muchiri
1st Plaintiff
Dan Mundia Muchiri
2nd Plaintiff
Suing as the legal representatives of the Estate of Benson Mugweru Muchiri
and
Lilian Regeria Kageenu
1st Defendant
Caroline Nkatha
2nd Defendant
Ruling
1. This ruling is on the Notice of Motion dated September 14, 2022. The motion which is brought under Section 80 of the Civil Procedure Act, Order 45, Rules 1 and 3 of the Civil Procedure Rules seeks a review of the ruling of this court dated May 7, 2020 which directed the Defendant to file a replying affidavit instead of a defence and counterclaim. It also seeks to have the defense and counterclaim dated and filed on February 1, 2022 be deemed as duly filed and served.
2. The motion is supported by nineteen grounds, an affidavit and two annexures. The gist of the three materials is that the procedure of originating summons is not appropriate for determining contentious disputes and this is one of the reasons why the rules gives the court power to convert proceedings commenced by originating summons into a plaint. It is further contended that the Plaintiff will suffer no prejudice if this application were to be allowed and it is in the interest of justice that this application be allowed.
3. The motion is unopposed by the Plaintiffs’ counsel.
4. Upon consideration of the motion dated September 14, 2022, I find that it has merit because I am convinced that this suit is contentious and the simple procedure in originating summons is not appropriate in all the circumstances of this case. Notice of motion allowed in terms of prayers 1, 2 and 3. Cost in the cause.
5It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 24TH DAY OF APRIL, 2023. M.N. GICHERUJUDGE