[2008] KEHC 1822 (KLR)
The court held that interlocutory judgment is not available in land matters under the cited provisions of the Civil Procedure Rules, unless the claim is based on contract or tort, which was not the case here. The application to strike out the suit and for interlocutory judgment was therefore not tenable....
Source-derived case information.
- Citation
- [2008] KEHC 1822 (KLR)
- Parties
- Plaintiff: Gabriel Ngaruiya Mwaniki; Defendant: Joseph Wiatiruka Kamau alias Joseph Ngochi Mwaniki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 146 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit and for Summary Judgment
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Consolidation of Suits, Interlocutory Judgment, Abuse of Process, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Ngaruiya Mwaniki
Plaintiff
Joseph Wiatiruka Kamau alias Joseph Ngochi Mwaniki
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit and for Summary Judgment
Legal Issues
- 1 Whether the suit should be struck out as an abuse of court process.
- 2 Whether interlocutory judgment can be entered in a consolidated land matter under the Civil Procedure Rules.
- 3 Whether the application for interlocutory judgment was premature or available in the circumstances.
Ratio Decidendi
The court held that interlocutory judgment is not available in land matters under the cited provisions of the Civil Procedure Rules, unless the claim is based on contract or tort, which was not the case here. The application to strike out the suit and for interlocutory judgment was therefore not tenable. Furthermore, the court found that no interlocutory judgment had been entered in the subordinate court file, and that the issues raised by the applicant were matters to be determined at the main hearing. The application was dismissed as an abuse of process, and the parties were directed to proceed to the main suit for determination of the substantive issues.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to strike out the suit and for interlocutory judgment is dismissed.
- Costs awarded to the respondent (original plaintiff) in HCCC146/07.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 146 of 2007
GABRIEL NGARUIYA MWANIKI ……………….…….. PLAINTIFF
VERSUS
JOSEPH WIATIRUKA KAMAU ALIAS
JOSEPH NGOCHI MWANIKI ………………………. DEFENDANT
RULING
APPLICATION TO STRIKE OUT SUIT
AND TO ENTER SUMMARY JUDGMENT
NOTICE OF MOTION 25 JANUARY 2008
I: BACKGROUND
1. On the 29 October 2007, this court heard an application Notice of Motion 21 June 2007 that sought the orders of this court to stay the proceeding of CMCC 398/07 Thika. The parties in that suit and in this present case were the same including the issues therein.
2. The court ruled that the two files be consolidated (Ruling of 1. 11. 07) Order XI r1 and 2 Civil Procedure Rules. That the proceeding be then proceeded in the High court of Kenya.
3. The CMCC398/07 subordinate court file was called to this High Court and duly consolidated.
4. On the 30 January 2008 the 1st defendant
Joseph Waituka Kamau alias Joseph Ngochi Mwaniki filed application dated 25 January 2005 seeking:-
“that the High Court suit be strike out as being an abuse of the court process.
That Interlocutory Judgment be entered in favour of Joseph Waituika Kamau as prayed in CMCC398/07”.
4. The grounds of the said application is that the respondent did not assert his alleged interest and or entitlement from 1973 to 2007.
5. It was only when the said respondent was served with proceeding in CMCC398/07 that he filed the second suit.
6. In reply, the respondent states the application was premature. This was a question that is to be determined in the trial.
III: Opinion
7. I hereby find that when the court consolidated this suit on 1 November 2007 that the parties would deal with the matters in question. It appears that instead the applicant has filed this application seeking an Interlocutory application.
8. I wish to point out that in land matters there is no Interlocutory application available under order IXA r 3 and 5 Civil Procedure Rules or IXA r 4 and 6 Civil Procedure Rules. Unless the issue in question is for Contract or Tort respectively then the Interlocutory Judgement is quite clearly not available under the said rules. The suit must be set down for hearing.
9. If in a situation (which is denied in this case) Interlocutory Judgment has been correctly entered in one file, then when the suits are consolidated, that judgment remains in force and is not set to be applied for a second time.
10. I have perused the CMCC file and find there is no Interlocutory Judgment entered.
11. The application herein is rejected. Parties are to proceed to the main suit on the matters in question.
12. The application is dismissed with costs to the respondent original plaintiff in Hccc146/07.
DATED THIS 8TH DAY OF MAY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
J.M. Njoroge of Muturi Njoroge & Co. Advocates for the plaintiff- present
R.M. Mokaya holding brief for Gathoga Wairegi & Co. Advocates for the defendant/Respondent - present