[2010] KEHC 1212 (KLR)
The court held that it was functus officio, having already delivered a final judgment on the substantive issues in the amended plaint, including declarations regarding trust and entitlement to the suit property. The application before the court sought orders inconsistent with the original plaint and attempted to...
Source-derived case information.
- Citation
- [2010] KEHC 1212 (KLR)
- Parties
- Plaintiff: Robert Kinuthia Mungai; Defendant: Hannah Wairimu Mwangi; Defendant: Suleiman Zakaria Mwangi alias Suleiman Mwangi alias Mwangi Muthee; Interested Party: Mwangi Nuthi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 964 of 1986
- Procedural Posture
- Civil Case / Ruling on Post Judgment Application
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Trusts in Land, Declaration of Rights, Execution of Judgment, Appointment of Receiver
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Kinuthia Mungai
Plaintiff
Hannah Wairimu Mwangi
Defendant
Suleiman Zakaria Mwangi alias Suleiman Mwangi alias Mwangi Muthee
Defendant
Mwangi Nuthi
Interested Party
Procedural Posture
Civil Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court has jurisdiction to grant orders for sale of the suit property and appointment of a receiver after judgment has already been delivered and settled.
- 2 Whether the application dated 1st February, 2007 reopens issues already determined by the court.
Ratio Decidendi
The court held that it was functus officio, having already delivered a final judgment on the substantive issues in the amended plaint, including declarations regarding trust and entitlement to the suit property. The application before the court sought orders inconsistent with the original plaint and attempted to reopen matters already conclusively determined by the judgment of Alouch J. The court found no evidence of any review or appeal having been filed against the judgment. Accordingly, the court lacked jurisdiction to entertain the application for sale of the property and appointment of a receiver, and dismissed the application with costs to the respondents and interested party.
Court Disposition
application dismissed
Orders
- The application dated 1st February, 2007 is dismissed with costs to the respondents and the interested party.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 964 of 1986
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.964 OF 1986
ROBERT KINUTHIA MUNGAI…………………………………PLAINTIFF
VERSUS
HANNAH WAIRIMU MWANGI…………………………..1ST DEFENDANT
SULEIMAN ZAKARIA MWANGI alias
SULEIMAN MWANGI alias MWANGI MUTHEE…….2ND DEFENDANT
MWANGI NUTHI…………………….……………….INTERESTED PARTY
RULING
This is a very old case. It involves a parcel of land, land reference No.36/111/1225 situate at Eastleigh, Nairobi. In a plaint dated 20th March, 1986 and filed on 25th March, 1986 and amended on 16th July, 1992, the plaintiff sought the following orders;
a) A declaration that the 1st defendant holds one third of the said suit property in trust for the plaintiff.
b)Proper and true account of the said rental income from the date of the said property was purchased until now be rendered by the defendant to the plaintiff.
c)A declaration that the said trust as far as it concerns the plaintiff is at an end and the plaintiff’s said share shall vest in the plaintiff.
On 16th December, 1999 Alouch J. (as she then was) delivered a judgment in favour of the plaintiff. The learned judge concluded in the said judgment as follows; “I am satisfied that the plaintiff’s case has been proved on a balance and I proceed to grant prayers a, b, c, d, and e of the amended plaint dated 16th July,1992. ”
The defendants according to the record moved the court to set aside the said judgment but on 12th September, 2002 the said application was dismissed by the same learned judge. I have not seen any evidence on record that the court was moved to review the said judgment at any stage neither is there any evidence that the aggrieved party filed any appeal.
There is now an application before me dated 1st February and filed on 2nd February, 2007 seeking two main orders. These are;
a. The piece or parcel of land known as Land Reference No.36/111/1225 Eastleigh, Nairobi be sold.
b.A receiver be appointed to manage the said land, collect the rent and pay all the outgoings pending the sale of the said land.
The application is opposed and the respondents have filed replying affidavits thereto alongside the submissions of counsel on record.
My first observation, with respect, is that those prayers are inconsistent with the prayers set out in the plaint which, in any case, were granted in favour of the plaintiff. To address the same issues, that is in the application dated 1st February, 2007 would be re-opening the pleadings set out in plaint and which were settled by the judgment of Alouch J. (as she then was).
With profound respect, the matters being canvassed in this application have been covered in the same judgment and this court is fanctus officio. I have no jurisdiction to re-open those proceedings and I decline to address the issues any further.
The application is therefore dismissed with costs to the respondents and the interested party.
Orders accordingly.
Dated, signed and delivered at Nairobi this 25th day of October, 2010.
A. MBOGHOLI MSAGHA
JUDGE