[2015] KEHC 2395 (KLR)
The court found that the defendant's notice of motion seeking to dismiss the originating summons had remained unprosecuted since 10th March 2014, constituting inordinate delay. Additionally, the court noted that the defendant had acted in breach of a subsisting injunctive order by interfering with the plaintiff's...
Source-derived case information.
- Citation
- [2015] KEHC 2395 (KLR)
- Parties
- Plaintiff: Ndichu Kahuha; Defendant: Peter Njeru Stanley
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Dismiss Notice of Motion
- Outcome
- Plaintiff's application granted; defendant's notice of motion dismissed.
- Legal Topics
- Contempt of Court, Injunctive Relief, Breach of Court Order, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndichu Kahuha
Plaintiff
Peter Njeru Stanley
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Dismiss Notice of Motion
Legal Issues
- 1 Whether the defendant's notice of motion dated 10th March 2014 should be dismissed for want of prosecution.
- 2 Whether the defendant acted in contempt of the court's injunctive order by interfering with the plaintiff's possession and destroying property.
Ratio Decidendi
The court found that the defendant's notice of motion seeking to dismiss the originating summons had remained unprosecuted since 10th March 2014, constituting inordinate delay. Additionally, the court noted that the defendant had acted in breach of a subsisting injunctive order by interfering with the plaintiff's possession and destroying property. The court held that a party in contempt should not be allowed to benefit from their own wrongful conduct. Consequently, the plaintiff's application to dismiss the defendant's notice of motion was granted, and the defendant's application was dismissed.
Court Disposition
Plaintiff's application granted; defendant's notice of motion dismissed.
Orders
- The defendant's notice of motion dated 10th March 2014 is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C. NO 101 OF 2014
FORMERLY KERUGOYA 101 OF 2014
NDICHU KAHUHA..................................................PLAINTIFF/RESPONDENT
VERSUS
PETER NJERU STANLEY........................................DEFENDANT/APPLICANT
RULING
1. This is an application by the defendant/applicant to dismiss the notice of motion filed by the defendant through his counsel dated 10th March 2014. In support of his application, the plaintiff/respondent has annexed a replying affidavit sworn to by the plaintiff/respondent.
2. According to the plaintiff/applicant, the defendant is in contempt of a court order issued by this court (Ong'udi, J) on 22nd December, 2011. By that order, the defendant was restrained from alienating, transferring or trespassing or in any manner interfering with the plaintiffs peaceful possession of the suit land number Nthawa/Riandu/1235 pending the hearing and determination of the suit.
3. The plaintiff/applicant has stated that the defendant was served with this order. He has stated that the defendant should not be allowed to benefit from his own conduct of destroying the house, goods and crops. There was a court order in force stopping him from doing so. The application sought dismissed is that of the defendant dated 10th March 2014. It was filed after the injunctive order was issued.
4. I have perused the replying affidavit of the plaintiff/respondent and its annexes. It is clear that the motion seeking to dismiss the originating summons has been lying in court un-prosecuted since 10th March, 2014. The delay is inordinate.
5. Additionally, it seems that the defendant has acted in breach of the temporary injunction in destroying the properties of the plaintiff.
6. In view of the foregoing reasons, the plaintiff's application is hereby granted. I therefore order that the defendant's notice of motion be and is hereby dismissed.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 7thday of MAY2015.
In the presence of Mr. Muraguri for the defendant and in the absence of Mr. Mugo for the Plaintiff/Respondent.
Court clerk Mr Nyaga
J.M. BWONWONGA
JUDGE