[2008] KEHC 521 (KLR)
The court held that the applicant's application was fatally defective as it was not anchored on any substantive suit. The law requires that claims be commenced by Plaint or Originating Summons, and not by Notice of Motion, which is reserved for interlocutory matters within an existing suit. Since the applicant had...
Source-derived case information.
- Citation
- [2008] KEHC 521 (KLR)
- Parties
- Applicant: Rosa Wanjiku Waweru; Respondent: Anne Wanjugu Njuguna; Respondent: Arthur Njuguna Kamau; Respondent: David Waweru Kamau; Respondent: Patrick Kahura; Respondent: Caroline Wangari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 82 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application struck out
- Judges
- JW Gacheche
- Legal Topics
- Matrimonial Property, Interlocutory Applications, Commencement of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosa Wanjiku Waweru
Applicant
Anne Wanjugu Njuguna
Respondent
Arthur Njuguna Kamau
Respondent
David Waweru Kamau
Respondent
Patrick Kahura
Respondent
Caroline Wangari
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether an interlocutory application can be sustained where no substantive suit exists.
- 2 Whether the applicant is entitled to orders restraining the respondents from interfering with her enjoyment of the matrimonial home.
Ratio Decidendi
The court held that the applicant's application was fatally defective as it was not anchored on any substantive suit. The law requires that claims be commenced by Plaint or Originating Summons, and not by Notice of Motion, which is reserved for interlocutory matters within an existing suit. Since the applicant had not filed a substantive suit, the court lacked jurisdiction to entertain the application, regardless of the underlying family dispute or the merits of the applicant's grievances. The application was therefore struck out for being procedurally improper.
Court Disposition
application struck out
Orders
- The application is struck out for being procedurally improper.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ. Appli. 82 of 2007
ROSA WANJIKU ……………………...…………….…….APPLICANT
versus
ANNE WANJUGU NJUGUNA ………………... 1ST RESPONDENT
ARTHUR NJUGUNA KAMAU ….…………..… 2ND RESPONDENT
DAVID WAWERU KAMAU …..………………... 3RD RESPONDENT
PATRICK KAHURA ……..…………………..…. 4TH RESPONDENT
CAROLINE WANGARI ……….……………….…5THRESPONDENT
RULING
ROSA WANJIKU WAWERUwho is the applicant herein seeks an order to restrain ANNE WANJUGU NJUGUNA, ARTHUR NJUGUNA KAMAU, DAVID WAWERU KAMAU, PATRICK KAHURAand CAROLINE WANGARI who I shall refer to as the 1st to the 5th respondents respectively, from interfering with her matrimonial home. She also prays for an order to compel DAVID WAWERU KAMAU, who she claims is her husband, to allow her, peace of mind.
It is clear from the proceedings that the 1st, 2nd, 4th and 5th respondents, who are all related, are also the applicant’s in laws.
It would appear that the applicant and the 3rd respondent had marital problems which led to a dissolution of their marriage in November 1985, and though the applicant denies that fact, the 3rd Respondent was however able to prove it by attaching a copy of the relevant court order to his replying affidavit. She has however remained in the matrimonial home, and this stay is in my view is the cause for the alleged problems for though she lives on the same parcel of land with all the respondents and though in different homesteads, she is of the view that her said husband is easily influenced by his co-respondents who are all his relatives and which interference has resulted in their denying her peaceful enjoyment of her home by interfering with her activities therein.
I have considered the pleadings herein as well as the submissions by the applicant and the respondents’ counsel.
While I appreciate the fact that one is entitled to quiet and peaceful enjoyment of their property, I however need not reiterate the fact that an interlocutory application can only lie where a suit exists, yet it is clear that the applicant commenced her ‘cause’ by way of a Notice of Motion, which in my view is clearly contrary to the legal requirement that such an application cannot be the basis of a claim, for suit for any claim must be commenced by of a Plaint or where the rule so provide, by way of an Originating Summons, applications being for interlocutory matters. (Adala v. Anyere CA No Nai 30 of 1988).
In the circumstances, it is my humble opinion that this application, which is not based on a suit, cannot lie in its current nature and I do strike it out. However, I have taken note of the relationship of these parties and I feel that it would only be fair if each party bears it’s own costs.
Dated and delivered at Nairobi this 26th day of June 2008
JEANNE GACHECHE
Judge
Delivered in the presence of: