[2008] KEHC 3859 (KLR)
The court held that, although the plaintiffs had purchased the property at a public auction and sought injunctive orders for eviction, the application for such orders was premature. The court emphasized that formal proof of eviction should be heard with the participation of all parties, especially where the...
Source-derived case information.
- Citation
- [2008] KEHC 3859 (KLR)
- Parties
- Plaintiff: Paxton Maina Mugo; Plaintiff: Jane Wambui Maina; Defendant: Maurice Chiriswa Wanekaya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 75 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunctive orders dismissed; matter to proceed to full trial.
- Legal Topics
- Eviction Proceedings, Public Auction Sales, Injunctive Relief, Possession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paxton Maina Mugo
Plaintiff
Jane Wambui Maina
Plaintiff
Maurice Chiriswa Wanekaya
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to injunctive orders to evict the defendant from the suit premises pending full trial.
- 2 Whether the defendant should be granted leave to amend pleadings and enjoin a third party.
Ratio Decidendi
The court held that, although the plaintiffs had purchased the property at a public auction and sought injunctive orders for eviction, the application for such orders was premature. The court emphasized that formal proof of eviction should be heard with the participation of all parties, especially where the defendant seeks to enjoin a third party and amend pleadings. The related suit had been struck out for lack of jurisdiction, not dismissed, and the defendant's right to be heard and to amend pleadings was recognized. Consequently, the application for injunctive orders was dismissed with costs in the cause, and the matter was directed to proceed to full trial, with the defendant granted...
Court Disposition
Application for injunctive orders dismissed; matter to proceed to full trial.
Orders
- Application for injunctive orders is dismissed with costs in the cause.
- Parties to proceed to full trial.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 75 of 2007
1. Land and Environmental Law Division
2. Subject of main suit:- Eviction
i) Sale by public auction
ii) New purchaser wish the defendant be evicted from the preemies
iii) Related file Milimani CMCA13795/06 suit. Defendant and 3rd party.
3. Application 8. 10. 07
a) Certificate of urgency
b) Seeking orders to have defendant vacate premises.
4. Reply 9. 7.07
c) Respondent seeks time to counter claim against 3rd party
d) Application – premature
5 Held: Injunction to issue
6. Case law – Nil
6. Advocate:
Kwengu of Kwengu & Co. Advocate s for the plaintiff/applicant – present
Oindoo & Associates advocates for the defendant/respondent - absent
PAXTON MAINA MUGO …………………......……………….. 1ST PLAINTIFF
JANE WAMBUI MAINA …………………………....…………. 2ND PLAINTIFF
VERSUS
MAURICE CHIRISWA WANEKAYA ……………………….. DEFENDANT
RULING
I: Background
1. The two plaintiffs bought a house in an auction. They now wish that the defendant, the former owner who occupies the said land premises be evicted from the suit premises.
2. They file suit to seek these prayers of eviction on 27 April 2007. They file application of 8. 10. 07 seeking injunctive orders to evict the defendant.
3. In reply the defendant state he wishes to enjoin HFCK. There is a related case CMCC 13795/06 Milimani court which was struck out and not dismissed as stated by the advocate for the applicants on grounds that the suit was filed in the wrong court having no jurisdiction.
II: Should injunctive orders issue?
4. Where you require to evict the defendant, after the defendants premises had been sold in a public auctioneer, then as far as possible formal proof of the eviction should be heard of parties by the court.
5. I direct that the application be and is hereby dismissed with costs in the cause.
6. Parties to go to full trial. The defendant be and is hereby given leave to file further amendments but subject to costs.
Dated this 5th day of March 2008 at Nairobi.
M.A. ANG’AWA
JUDGE
Kwengu of Kwengu & Co. Advocate s for the plaintiff/applicant – present
Oindoo & Associates advocates for the defendant/respondent - absent