[2012] KEHC 4931 (KLR)
The court found that while the 2nd respondent had failed to comply with the earlier order to settle outstanding rates, the drastic remedies of striking out the defence and granting possession to the applicant without a full hearing were not justified. The court emphasized that striking out is a remedy reserved for...
Source-derived case information.
- Citation
- [2012] KEHC 4931 (KLR)
- Parties
- Applicant: Peninah Wambui Mugo; Respondent: Moses Njaramba; Respondent: Mary Muthoni Njaramba
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 238 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Enforcement of Interim Orders and Striking Out Defence
- Outcome
- Application partially allowed.
- Judges
- SP Ouko
- Legal Topics
- Interim Orders, Striking Out Defence, Payment of Rates, Possession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peninah Wambui Mugo
Applicant
Moses Njaramba
Respondent
Mary Muthoni Njaramba
Respondent
Procedural Posture
Civil Case / Ruling on Application for Enforcement of Interim Orders and Striking Out Defence
Legal Issues
- 1 Whether the 2nd respondent should be compelled to settle outstanding municipal rates within a specified period.
- 2 Whether failure to comply with the court order warrants striking out the 2nd respondent's defence and granting possession to the applicant.
- 3 Whether the applicant can collect rates on behalf of the municipal council.
Ratio Decidendi
The court found that while the 2nd respondent had failed to comply with the earlier order to settle outstanding rates, the drastic remedies of striking out the defence and granting possession to the applicant without a full hearing were not justified. The court emphasized that striking out is a remedy reserved for clear cases as set out in Order 2 rule 15 of the Civil Procedure Rules, and the circumstances of this application did not meet that threshold. The court instead ordered the 2nd respondent to settle the outstanding rates or demonstrate efforts towards payment within 30 days, declining to grant the more severe orders sought by the applicant. The court also noted that the applicant...
Court Disposition
Application partially allowed.
Orders
- The 2nd respondent is ordered to settle the outstanding rates with the Municipal Council of Nyahururu or demonstrate efforts towards payment within 30 days.
- No order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.238 OF 2004
PENINAH WAMBUI MUGO…….…………………….. APPLICANT/PLAINTIFF
VERUS
MOSES NJARAMBA ……………..…………1ST RESPONDENT/DEFENDANT
MARY MUTHONI NJARAMBA…………..…2ND RESPONDENT/DEFENDANT
RULING
This court by its ruling delivered on 3rd June, 2011 ordered the 2nd respondent to settle outstanding rates and to continue to pay the same as they accrue pending the determination of the suit. She has not complied with that order and the applicant has now moved the court for orders that the 2nd respondent be directed to pay all the outstanding rates with the Municipal Council of Nyahururu within 14 days from the date of the order and that in default the 2nd respondent’s statement of defence be struck out and the applicant to be allowed to take possession. In the preliminary objection, the 2nd respondent’s counsel argues that the orders sought if granted will render the 2nd respondent’s counter-claim nugatory and that the applicant cannot purport to collect rates on behalf of the council.
The first prayer is similar to the prayers granted in the ruling of 3rd June, 2011, save that in the latter no time limit for the settlement of the rates was specified. The 2nd respondent has thirty (30) days within which to settle the outstanding rates to show efforts towards settling the same.
The prayer for striking out the 2nd respondent’s defence and for orders permitting the applicant to take possession are clearly not available. Striking out procedure is provided for under Order 2 rule 15 of the Civil Procedure Rules. The principles for striking out are well settled and do not include the matters deposed in this application. Secondly, to allow the applicant to take possession of the suit property as prayed without hearing evidence would be draconian and unprocedural.
The parties are advised to have the matter fixed for hearing so that their rights over the property can be finally determined. To the extent that the 2nd respondent is ordered to settle the rates or to demonstrate efforts towards payment within 30 days, this application succeeds. But I make no orders as to costs.
Dated, Signed and Delivered at Nakuru this 23rd day of March, 2012.
W. OUKO
JUDGE