[2009] KEHC 2431 (KLR)
The court found that, although the preliminary objection raised issues regarding the competence of the applicant's request to be enjoined as a party, it was not convinced that the application was incompetent or an abuse of process. The court emphasized that justice requires that the applicant be given an opportunity...
Source-derived case information.
- Citation
- [2009] KEHC 2431 (KLR)
- Parties
- Plaintiff: Rose N. Kitayi; Defendant: Mercy N. Khaemba; Applicant: Dr. William Ouma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 87 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FN Muchemi
- Legal Topics
- Joinder of Parties, Preliminary Objection, Specific Performance, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose N. Kitayi
Plaintiff
Mercy N. Khaemba
Defendant
Dr. William Ouma
Applicant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicant's application to be enjoined as a party is incompetent and bad in law.
- 2 Whether the application constitutes an abuse of the due process of the court.
- 3 Whether the applicant should be allowed to challenge the consent judgment between the plaintiff and defendant.
Ratio Decidendi
The court found that, although the preliminary objection raised issues regarding the competence of the applicant's request to be enjoined as a party, it was not convinced that the application was incompetent or an abuse of process. The court emphasized that justice requires that the applicant be given an opportunity to be heard, especially where there is a dispute or misunderstanding regarding the subject matter of the suit. The preliminary objection was therefore rejected, and the applicant's application was directed to be heard inter partes.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is rejected.
- The applicant's application to be enjoined as a party shall be fixed for hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Civil Suit 87 of 2005
ROSE N. KITAYI…………………………....………PLAINTIFF
~VRS~
MERCY N. KHAEMBA………………….……...DEFENDANT
~AND~
DR. WILLIAM OUMA……………….....…………APPLICANT
RULING
This is a ruling on a preliminary objection dated 19/03/2009 and filed in court on 20/3/2009 brought by Kraido & Co. Advocates for the Defendant against the hearing of the Applicant’s application dated 16/3/2005. The preliminary objection is grounded on two issues:
a) That the application is incompetent and bad in law.
b) That it is an abuse of the due process of the court.
Mr. Kraido for the Defendant argued that, the said application seeks to set aside the judgment entered between the Plaintiff and the Defendant. It also seeks that, the Applicant be enjoined as a party to the suit. The Applicant be enjoined as a party to the suit. The Applicant challenges the judgment without saying that it was entered irregularly. Her contention is that, the suit was filed in court without her being informed.
The material facts herein is that, the Plaintiff sued the Defendant herein for orders of specific performance of a portion of 200 ft x 200 ft to be excised from Parcel No. EAST BUKUSU/SOUTH KANDUYI/103. The parties later entered into a consent judgment where the Defendant agreed to transfer the said portion to the Plaintiff upon her removing a caution on the above named parcel of land she had lodged earlier. The Plaintiff was to present to the Land Registrar mutation forms relating to the suit land. The consent is dated 30/12/2006.
The Applicant came to court on 16/3/2006 seeking to be enjoined in this suit as a Defendant so that he could defend his interests. He depones in his supporting affidavit that he bought land from the Defendant EAST BUKUSU/S.KANDUYI/11712 which land he has now developed. He annexes photographs of permanent structures to his application. In the replying affidavit, the Defendant states that she sold a certain parcel of land to the Applicant on her land EAST BUKUSU/S.KANDUYI/103 but not on EAST BUKUSU/S.KANDUYI/11712. Yet the Applicant maintains that the portion he bought is on the land which is the subject matter of this case.
I appreciate the points raised in the preliminary objection that the Applicant should file his own suit to get his relief from the Defendant. However, I am of the opinion that since there is a dispute or misunderstanding between the Applicant and the Defendant, it is not in the interests of justice to shut the doors of justice for the Applicant through a preliminary objection. The Applicant ought to be given a chance for his application to be heard inter parties. I note that, the preliminary objection raised, addresses the issue of incompetence of the application. However, I am not convinced that the application is incompetent. I therefore reject the preliminary objection and direct that the application be fixed for hearing.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma this 8th day of July 2009 in the presence of Mr. Kraido for defendant / Respondent.