[2015] KEHC 1374 (KLR)
The court found that the applicant's attempt to seek substantive orders for stay of eviction and release of monies in a miscellaneous application, while the main proceedings and relevant documents are in a different parent file, is procedurally improper. The applicant failed to reconstruct or reference the parent...
Source-derived case information.
- Citation
- [2015] KEHC 1374 (KLR)
- Parties
- Applicant: Nancy Kahoya Amadiva; Respondent: Expert Credit Limited; Respondent: John Mutitu Ngacha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 444 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Eviction and Release of Monies
- Outcome
- application struck out as incompetent and an abuse of court process; costs to respondents
- Judges
- RE Aburili
- Legal Topics
- Abuse of Court Process, Stay of Eviction, Release of Funds, Re Litigation, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Kahoya Amadiva
Applicant
Expert Credit Limited
Respondent
John Mutitu Ngacha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Eviction and Release of Monies
Legal Issues
- 1 Whether the applicant can seek stay of eviction and release of monies in a miscellaneous application file when the substantive proceedings are in a different parent file.
- 2 Whether instituting fresh proceedings without reconstructing or referencing the parent file constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicant's attempt to seek substantive orders for stay of eviction and release of monies in a miscellaneous application, while the main proceedings and relevant documents are in a different parent file, is procedurally improper. The applicant failed to reconstruct or reference the parent file and did not provide the necessary documents, thereby withholding material facts from the court. This conduct was deemed an abuse of the court process and an attempt to relitigate the dispute afresh, which the court cannot countenance. Consequently, the application was struck out as incompetent and an abuse of process.
Court Disposition
application struck out as incompetent and an abuse of court process; costs to respondents
Orders
- The application is struck out as incompetent and an abuse of court process.
- The applicant shall bear the costs of this application to the respondents.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 444 OF 2015
NANCY KAHOYA AMADIVA ….…………………………APPLICANT
VERSUS
EXPERT CREDIT LIMITED…….......………………1ST RESPONDENT
JOHN MUTITU NGACHA……………………….2ND RESPONDENT
COURT RULING
By the applicant’s counsel’s own admission, there is every indication that there is a parent file for this matter wherein an appeal before the Court of Appeal was delivered on 2nd October 2015. This court has no advantage of appreciating what transpired in the matter. By instituting fresh proceedings in the Miscellaneous Application matter, without seeking to reconstruct a skeleton file and availing all the necessary documents from the parent file which is not said to be lost is in my view an abuse of the court process and an attempt to steal a match on the adverse party by withholding from this court material facts to the dispute and trying to relitigate the dispute afresh.
The applicant is seeking for stay of eviction from property known as LR 29/8343/107 and for release of monies deposited in court which are serious prayers that cannot be granted in a miscellaneous file yet the proceedings for which the above orders are anchored are housed in a different file.
In the premise, I strike out the application herein as being incompetent and an abuse of the court process and order that the applicant bears the costs of this application to the Respondents
Orders accordingly.
R.E. ABURILI
JUDGE
19/10/2015