[2007] KEHC 3524 (KLR)
The court found that the Originating Summons filed by the plaintiff raised complex and contentious issues of fact and law, including multiple interests in land, adverse possession, limitation of actions, effects of judicial review, land adjudication, and res judicata. The number of defendants and the nature of the...
Source-derived case information.
- Citation
- [2007] KEHC 3524 (KLR)
- Parties
- Plaintiff: Rugano Nthiga; Defendant: Faustino Njeru Njoka & 74 Others
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 81 of 2005
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Originating Summons dismissed with costs to the applicant.
- Legal Topics
- Originating Summons Procedure, Complexity of Issues, Adverse Possession, Limitation of Actions, Land Adjudication, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rugano Nthiga
Plaintiff
Faustino Njeru Njoka & 74 Others
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Originating Summons procedure is appropriate for resolving the complex and contentious issues of fact and law raised in this case.
- 2 Whether the Originating Summons should be struck out as incompetent due to the nature and number of issues and parties involved.
Ratio Decidendi
The court found that the Originating Summons filed by the plaintiff raised complex and contentious issues of fact and law, including multiple interests in land, adverse possession, limitation of actions, effects of judicial review, land adjudication, and res judicata. The number of defendants and the nature of the disputes made the matter unsuitable for determination by Originating Summons, which is reserved for simple matters. The court relied on established case law, including Kibutiri v Kibutiri and Kenya Commercial Bank Ltd v Osebe, which restrict the use of Originating Summons to straightforward cases. Consequently, the court held that the application to strike out the Originating...
Court Disposition
Originating Summons dismissed with costs to the applicant.
Orders
- The Originating Summons is dismissed.
- Costs awarded to the applicant in the suit and in the Chamber Summons.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 81 of 2005
RUGANO NTHIGA…………………….……..……………PLAINTIFF
VERSUS
FAUSTINO NJERU NJOKA & 74 OTHERS............ DEFENDANT
JUDGMENT
The Plaintiff has filed this Originating Summons against 75 persons described as Respondents. The Plaintiff claims to be rightful proprietor of all the parcels of land captured at the heading of the Originating Summons numbering 14. The respondents by their Advocate filed an application dated 31/1/2006 seeking orders to strike out the Originating Summons with costs on the ground that the 13 questions raised in the Originating Summons are in violation of principles of the Originating Summons which is to determine simple matters which a court can settle without the expense of bringing an action and that the 13 questions raise complex and contentious issues of fact and law which are above the scope of Originating Summons and that the Originating Summons is incompetent. To this application the Respondents filed grounds of opposition the main one of which (d) refers to Order 36 3F C.P.C which directs that such issues he brought to court under Originating Summons only. In supporting of the applicationthe applicant relied on the authority of Kibutiri Vs Kibutiri [1983] KLR 62 where it was held:-
1. that procedure by way of Originating Summons is intended to enable simple matters to be settled by court without the expenses of bringing an action in the usual way. The procedure is however not meant to determine matters which involve serious questions of law and fact.
2. in cases where complex issues and contentious matters the Judge should dismiss the summons and leave the parties to pursue their claims by ordinary suit because the scope of inquiry under Originating Summons is limited.
Mr. Njagi also referred to the Case of Kenya Commercial Bank Ltd Vs Osebe where the court held that the procedure of Originating Summons was intended for simple matters. “The procedure should not be used for the purpose of determining disputed questions of facts”. A perusal of this record shows that the number of defendants is large and each has different interests in the lands in dispute. There raised complex issues of law under Cap. 300, adverse possession issues under Limitation of Actions Act Cap 22 effects of Judicial Review decision, Land Adjudication Act and others like issues of resjudicata. The facts are also complex and serious and disputed seeing the nor of the affidavit filed.
It is my finding therefore the defendants application dated 31/1/2006 must succeed. The Originating Summons is dismissed with costs to the Applicant in the suit and in this Chamber Summons.
It is so ordered.
Dated this 1st November, 2007.
J. N. KHAMINWA
JUDGE
1/11/2007
Khaminwa – Judge
Njue – Clerk
Parties present in person.
Read in open court.
J. N. KHAMINWA
JUDGE