[2008] KEHC 1920 (KLR)
The application to set aside ex parte orders cannot be entertained because there is an existing court order staying the proceedings pending the determination of Misc. 96/2005. The applicant failed to provide evidence of the status of Misc. 96/2005, and the court cannot presume its outcome or current position. As a...
Source-derived case information.
- Citation
- [2008] KEHC 1920 (KLR)
- Parties
- Applicant: Republic of Kenya; Respondent: The Hon. Attorney General; Respondent: The District Land Registrar Nyeri District; Respondent: Joseph Kihara Gitui; Respondent: Moses Kinaichu Mugenyo; Respondent: Kimotho Hiuhu; Respondent: Kinyua Hiuhu; Respondent: Wanjweni Kangeri; Respondent: Giakaburi/Kanjikeru Self Help Group
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 146 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Ex Parte Orders, Stay of Proceedings, Public Road Access, Land Parcels Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
The Hon. Attorney General
Respondent
The District Land Registrar Nyeri District
Respondent
Joseph Kihara Gitui
Respondent
Moses Kinaichu Mugenyo
Respondent
Kimotho Hiuhu
Respondent
Kinyua Hiuhu
Respondent
Wanjweni Kangeri
Respondent
Giakaburi/Kanjikeru Self Help Group
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the application to set aside ex parte orders can be entertained while a stay order is in force.
- 2 Whether there is evidence of the status of Misc. No. 96/2005 to justify proceeding with the application.
- 3 Whether the applicant is entitled to costs given the delay in the matter.
Ratio Decidendi
The application to set aside ex parte orders cannot be entertained because there is an existing court order staying the proceedings pending the determination of Misc. 96/2005. The applicant failed to provide evidence of the status of Misc. 96/2005, and the court cannot presume its outcome or current position. As a result, the court is bound by its earlier stay order and must dismiss the application. Furthermore, due to the significant delay in the prosecution of the matter, the ex parte applicant is not entitled to costs for this application.
Court Disposition
application dismissed
Orders
- The application dated 16/1/2008 is dismissed.
- Ex parte applicant is not entitled to costs for this application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc. Civ. Appli. 146 of 2005
REPUBLIC OF KENYA………….…….......................……………………APPLICANT
VERSUS
THE HON.ATTORNEY GENERAL……………………….………1ST RESPONDENT
THE DISTRICT LAND REGISTRAR NYERI DISTRICT…..…..2ND RESPONDENT
JOSEPH KIHARA GITUI………………………………………….3RD RESPONDENT
MOSES KINAICHU MUGENYO……….…………………………4TH RESPONDENT
KIMOTHO HIUHU……………………...…………………………..5TH RESPONDENT
KINYUA HIUHU…………………...……………………………….6TH RESPONDENT
WANJWENI KANGERI………...………………………………….7TH RESPONDENT
GIAKABURI/KANJIKERU SELF HELP GROUP……………….8TH RESPONDENT
RULING
The Application dated 16/1/2008 seeks orders to set aside exparte orders given on 24/1/2006 and issued on 27/1/2006. And that the District Land Registrar Nyeri District be ordered to re –open the public road of access running between land parcels number Magutu/Gatei/444 and 445. The application is based on 7 grounds set out in the application and on supporting affidavit of Moses Kinaichu Mugenyo 4th Respondent in the Misc. Application sworn on 16/1/2008 which shows that the orders sought to be set aside were granted after hearing application dated 23/1/2006 annexure MKM – 1.
By order of this court made on 13/11/2007, it was ordered that this suit be stayed pending the hearing and determination of Misc.96/2005. This application therefore should not be filed until the orders of stay are discharged or that case is determined. There is no evidence of the present status of Misc.No.96/2005 and therefore the court cannot presume.
I therefore dismiss this application. I however point out that there has been great delay in these matters filed by Mr. Gacheche hence Ex parte applicant is not entitled to costs for this application.
Dated this 30th May, 2008.
J. N. KHAMINWA
JUDGE
30/5/2008
Khaminwa – Judge
Njue – Clerk
Joseph Kihara Gitui present
Christopher present
Read in open court in their presence.
J. N. KHAMINWA
JUDGE