[2008] KEHC 3865 (KLR)
The court held that the dismissal of the main suit did not entitle the defendants to immediate eviction orders against the plaintiff. The counter-claim, which included the prayer for eviction, had not been heard or determined. The proper procedure required that the counter-claim be set down for hearing, evidence be...
Source-derived case information.
- Citation
- [2008] KEHC 3865 (KLR)
- Parties
- Plaintiff: Peremeres Ole Koilel; Defendant: Moshorro Group Ranch; Defendant: Ntari Moshorro; Defendant: Salimu Kindi; Defendant: Simon Mututua; Defendant: Kinki Koilel; Defendant: Leshunet Koilel; Defendant: Lemisos Koilel; Defendant: Rupen Koilel; Defendant: Nkoshoo Ngotiek; Defendant: Mpoyo Sunguyiah Stephen; Defendant: Joseph K. Sunguyiah; Defendant: Alfred Ole Loonturot; Defendant: Ene Koilel Kalaite
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1549 of 1998
- Procedural Posture
- Civil Case / Ruling on Post Dismissal Eviction Application
- Outcome
- Application for eviction dismissed; counter-claim to be set down for hearing; costs to the respondent/plaintiff.
- Legal Topics
- Eviction Proceedings, Counter Claims, Civil Procedure Rules, Suit Dismissal, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peremeres Ole Koilel
Plaintiff
Moshorro Group Ranch
Defendant
Ntari Moshorro
Defendant
Salimu Kindi
Defendant
Simon Mututua
Defendant
Kinki Koilel
Defendant
Leshunet Koilel
Defendant
Lemisos Koilel
Defendant
Rupen Koilel
Defendant
Nkoshoo Ngotiek
Defendant
Mpoyo Sunguyiah Stephen
Defendant
Joseph K. Sunguyiah
Defendant
Alfred Ole Loonturot
Defendant
Ene Koilel Kalaite
Defendant
Procedural Posture
Civil Case / Ruling on Post Dismissal Eviction Application
Legal Issues
- 1 Whether the dismissal of the main suit entitles the defendants to immediate eviction orders against the plaintiff.
- 2 Whether the counter-claim seeking eviction must be heard and determined before eviction orders can be granted.
Ratio Decidendi
The court held that the dismissal of the main suit did not entitle the defendants to immediate eviction orders against the plaintiff. The counter-claim, which included the prayer for eviction, had not been heard or determined. The proper procedure required that the counter-claim be set down for hearing, evidence be taken, and judgment delivered before any eviction orders could be granted. The court found that the application for eviction was premature and declined to grant it, directing instead that the counter-claim be set down for trial. Costs were awarded to the respondent/plaintiff.
Court Disposition
Application for eviction dismissed; counter-claim to be set down for hearing; costs to the respondent/plaintiff.
Orders
- The application for eviction is dismissed.
- The counter-claim is to be set down for hearing.
Full Case Text
Judgment text and source record
59 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1549 of 1998
1. Land and Environmental Law Division
2. Subject of main suit: Land
b) Suit Trespass
c) 2-13 defendants counter claim
d) Land buying company
e) Suit dismissed by Rawal J on 31. 10. 07
f) No hearing of counter-claim
3. Application of 12 November 207
a) Eviction orders application of the plaintiff from suit land
b) Reasons – suit dismissed
4. Opinion
That only main suit dismissed. No right to have orders of eviction.
5. Held:
5. 1. The main suit was dismissed by Rawal J on 31. 10. 07. The trial should have proceeded to hearing of the counter-claim.
5. 2. That counter-claim not being heard on eviction application refused.
5. 3. Counter claim be set down for hearing.
6. Case Law – Nil
7. State Law Order 9b r 4 Civil Procedure Rules
8. Advocate:
O. Agina of Agina & Associates Advocates for the defendant/applicant – present
J.N. Pareno of J.N. Pareno & Co. Advocates for the defendant - present
PEREMERES OLE KOILEL ………………………………………. PLAINTIFF
VERSUS
1. MOSHORO GROUP RANCH
2. NTARI MOSHORO
3. SALIMU KINDI
4. SIMON MUTUTUA
5. KINKI KOILEL
6. LESHUNET KOILEL
7. LEMISOS KOILEL
8. RUPEN KOILEL
9. NKOSHOO NGOTIEK
10. MPOYO SUNGUYIAH STEPHEN
11. JOSEPH K. SUNGUYIAH
12. ALFRED OLE LOONTUROT
13. ENE KOILEL KALAITE ……………….……………….. DEFENDANTS
RULING
I: Application 12. 11. 07 to evict the plaintiffs from suit land
A: Background
1. The plaintiff respondent belong to a land buying company. An issue arose as to their status on land owned by the parties. They filed this suit while the defendant filed defence and a counter-claim.
2. When the matter came up for trial before Rawal J it was dismissed on 31. 10. 07 I believe for non attendance.
3. The defendant/respondents filed this application dated 12. 11. 07 seeking orders to have the plaintiffs respondents evicted from the suit land.
II: In reply by respondent/plaintiff
4. The respondent/plaintiff opposed the application in that the fact that the suit was dismissed did not mean that the right to be evicted followed.
III: Opinion
5. The Hon. Lady Justice Rawal has been taken to another division. When this file was placed before her she declined to deal with it for the said reasons. Under Order 17 r 10 Civil Procedure Rules I now deal with the said file.
6. I note that according to the suit before me – the Hon. Judge dismissed it. The trial should thereafter had continued on the counter-claim filed by the defendant and heard. Part of the prayers in question was indeed the issue of eviction that would have evidence taken down and judgment thereafter given. Order IXb r 4 Civil Procedure Rules applied.
7. I believe the advocate for the respondent is correct. That an eviction herein should have been heard in the counter claim. Once orders are given then do the applicant come to court for enforcement.
8. I decline to give the application and order that the counter claim only be set down for trial.
Costs to the respondent/plaintiff.
DATED THIS 12TH DAY OF MARCH 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
O. Agina of Agina & Associates Advocates for the defendant/applicant – present
J.N. Pareno of J.N. Pareno & Co. Advocates for the defendant - present