[2012] KEHC 1786 (KLR)
The court found that the application was incompetent because it was filed as a miscellaneous application rather than within the substantive appeal between the parties. The law and judicial practice require that substantive orders be sought within the main suit or appeal, not through a miscellaneous application. As...
Source-derived case information.
- Citation
- [2012] KEHC 1786 (KLR)
- Parties
- Applicant: Obadia Micha Nyongesa; Respondent: Mohammed Nyongesa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 63 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection/incompetence
- Outcome
- application struck out as incompetent with costs
- Judges
- AO Muchelule
- Legal Topics
- Miscellaneous Applications, Competence of Suit, Originating Process, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Obadia Micha Nyongesa
Applicant
Mohammed Nyongesa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection/incompetence
Legal Issues
- 1 Whether a suit for substantive orders can be originated by way of a miscellaneous application.
- 2 Whether the present application is competent given the existence of a related appeal.
Ratio Decidendi
The court found that the application was incompetent because it was filed as a miscellaneous application rather than within the substantive appeal between the parties. The law and judicial practice require that substantive orders be sought within the main suit or appeal, not through a miscellaneous application. As such, the application was struck out with costs to the respondent.
Court Disposition
application struck out as incompetent with costs
Orders
- The application is struck out as incompetent.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL MISCELLANEOUS APPLICATION 63 OF 2012
OBADIA MICHA NYONGESA.......................................................APPLICANT
~VERSUS~
MOHAMMED NYONGESA........................................................RESPONDENT
RULING
On 14/3/2012 a restriction was registered against the Applicant’s title no. Kimilili/Kimilili/4476. It was indicated that there would be no dealings on the title until Civil Appeal no.140 of 2010 at Bungoma is determined. The Appeal followed the judgment of the trial court at Kimilili in Civil Case no.77 of 2009 in which judgment was entered for the Applicant against the Respondent in respect of this parcel. The Appeal has not been heard or determined . It is the contention of the Applicant that the High Court in the appeal did not give any order to restrict the title. The present application was made under section 98 (1) of the Registered Land Act (Cap.300) and sections 3 and 3A of the Civil Procedure Act. It was not opposed.
This application was filed in a miscellaneous file. If there is an appeal between the parties the application should have been brought in it, and not in a miscellaneous application. A suit for substantive orders cannot be originated by way of a miscellaneous application. The application is incompetent and is struck out with costs.
Dated, signed and delivered at Bungoma this 24th day of September, 2012.
A.O. MUCHELULE
JUDGE