[2010] KEHC 3623 (KLR)
The court found that the eviction warrant issued on 16/12/97 was not supported by any counterclaim or legal basis, as the defendant had not sought eviction in his pleadings. Therefore, the warrant was irregular and unlawful. The court exercised its inherent jurisdiction to review and set aside the warrant, recalling...
Source-derived case information.
- Citation
- [2010] KEHC 3623 (KLR)
- Parties
- Applicant: Ocharo Ooga; Respondent: Sabina Obonyo Atera
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 83 of 1988
- Procedural Posture
- Civil Case / Ruling on Application for Review and Stay of Eviction Warrant
- Outcome
- Application allowed to the extent of recalling and nullifying the eviction warrant; costs to the applicant.
- Legal Topics
- Review of Court Orders, Eviction Proceedings, Trusts in Land, Warrants of Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ocharo Ooga
Applicant
Sabina Obonyo Atera
Respondent
Procedural Posture
Civil Case / Ruling on Application for Review and Stay of Eviction Warrant
Legal Issues
- 1 Whether the eviction warrant issued on 16/12/97 was valid in the absence of a counterclaim for eviction by the defendant.
- 2 Whether the plaintiff was entitled to review and setting aside of the eviction warrant.
Ratio Decidendi
The court found that the eviction warrant issued on 16/12/97 was not supported by any counterclaim or legal basis, as the defendant had not sought eviction in his pleadings. Therefore, the warrant was irregular and unlawful. The court exercised its inherent jurisdiction to review and set aside the warrant, recalling and nullifying it. The application was allowed to the extent of recalling and nullifying the eviction warrant, with costs to the applicant.
Court Disposition
Application allowed to the extent of recalling and nullifying the eviction warrant; costs to the applicant.
Orders
- The eviction warrant dated 16/12/97 is recalled and nullified.
- The application is allowed to this extent with costs to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Case 83 of 1988
OCHARO OOGA...................................APPLICANT/PLAINTIFF
-VERSUS-
SABINA OBONYO ATERA............RESPONDENT/DEFENDNAT
RULING
The plaintiff and the defendant are brothers. The defendant is the registered owner of land parcel no. West Kitutu/Mwagichana/2048. He was sued by the plaintiff who claimed the defendant held it in trust for him. The defendant denied the claim and pleaded that land was his. On 7/10/97 the court dismissed the plaintiff’s claim with costs. No appeal was preferred by the plaintiff.
On 7/1/10 the plaintiff rushed to court underOrder 44 rule 1of the Civil Procedure Rules and sections 3,3A and 63 (c) and(e) of theCivil Procedure Actseeking that the eviction warrant dated 16/12/97 be reviewed and set aside. In the interim he sought stay of the eviction.
I have considered the affidavit sworn to support the application and the replying affidavit. There is an eviction warrant allegedly issued by the Deputy Registrar on 16/12/97 that forms the basis of the plaintiff’s claim. It was addressed to the District Officer, Marani, to evict the plaintiff and to remove his property. The defendant did not have a counter claim for eviction, or at all, and there would be no basis in law for the order. If such warrant was issued, it is hereby recalled and nullified. To this extent, the application is allowed with costs.
Dated, signed and delivered at Kisii this 1st Day of February, 2010.
A.O.MUCHELULE
JUDGE
1/2/2010
Before A.O.Muchelule-J
Court clerk-Bibu
Mr. Minda –present
COURT: Ruling in open court.
A.O.MUCHELULE
JUDGE
1/2/2010