[1988] KEHC 33 (KLR)
The court found that the applicant lacked locus standi to bring the application, as conceded by his own counsel. Furthermore, since the application had already been fully argued, including on the preliminary objection, the court held that it could not be withdrawn at that stage. The proper course was to dismiss the...
Source-derived case information.
- Citation
- [1988] KEHC 33 (KLR)
- Parties
- Applicant: Paul Njagi; Respondent: Mutugu Kagwai; Respondent: Paul Chege Waikama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1640 of 1980
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Application
- Outcome
- application dismissed
- Judges
- E Owuor
- Legal Topics
- Locus Standi, Amendment of Decree, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Njagi
Applicant
Mutugu Kagwai
Respondent
Paul Chege Waikama
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Application
Legal Issues
- 1 Whether the applicant has locus standi to bring the application.
- 2 Whether the application should be dismissed after being argued on a preliminary objection.
- 3 Whether the court should allow withdrawal of the application after full argument.
Ratio Decidendi
The court found that the applicant lacked locus standi to bring the application, as conceded by his own counsel. Furthermore, since the application had already been fully argued, including on the preliminary objection, the court held that it could not be withdrawn at that stage. The proper course was to dismiss the application, as the issues had been canvassed and determined. The court upheld the respondent's preliminary objection and dismissed the application with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- Costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL CASE 1640 OF 1980
PAUL NJAGI…................................………APPLICANT
VERSUS
MUTUGU KAGWAI)
PAUL CHEGE WAIKAMA)………….RESPONDENTS
R U L I N G
In objecting to an application filed by Mr. Mwihia on behalf of the applicant seeking for several orders namely:-
“(a) That the decree be amended to conform with the Judgment of this court;
(b) That the annexed decree be approved as the decree of this court;
(c) That the plaintiff be allowed to nominate his mother Raphaela Njeri Paul Njagi as the transferee of the suit land;
(d) That the Deputy Registrar be authorized to sign the transfer documents to effect the registration of Raphaela Njeri Paul Njagi as legal absolute owner of the land title No.Loc.7/Ichagaki/1049. ”
Mr. Ngatia for the Respondent has taken a preliminary point to the effect that the so called applicant in this matter has no locus standi in the suit. On checking the record Mr. Mwihia does conceded that he was acting under a mistake in that the application which would have placed the applicant as a party in this suit was never actually heard. At the end of it Mr. Mwihia applied to the court to withdraw the application.
Mr. Ngatia has objected to this cause on the ground that the application has been argued on the basis of preliminary objection and therefore and therefore the application must be dismissed. I agree with Mr. Ngatia. The application whether argued on a preliminary point or the whole application, the end result is that the application has been argued, fully canvassed and so the question of introducing it does not arise.
I hereby therefore uphold Mr. Ngatia on his preliminary point and dismiss the application.
Costs to the Respondent.
Order accordingly.
E. OWUOR
JUDGE
24/10/88:
Coram: Owuor, J
Mr. Ngatia for the 2nd Defendant/Respondent
Mr. Kapila for Mr. Mwihia for the applicant
Court clerk – Njehia
Court:
Ruling read in Chambers.
E. OWUOR
JUDGE