[2012] KEHC 2755 (KLR)
The court found that the amended plaint disclosed a distinct cause of action against the current defendants, separate from the abated suit against their late father. The defendants' own affidavit confirmed their continued occupation of the suit property in their own capacity, which the plaintiff alleges constitutes...
Source-derived case information.
- Citation
- [2012] KEHC 2755 (KLR)
- Parties
- Plaintiff: Shariff Ali Salim (suing as the holder of power of attorney donated by Mariam Binti Ali Salim); Defendant: James Nzaro B. Kalama; Defendant: 3rd-9th Defendants (names not specified); Defendant: 1st Defendant (in person)
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 103 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal of Suit
- Outcome
- application dismissed
- Legal Topics
- Suit Abatement, Revival of Suit, Trespass to Land, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shariff Ali Salim (suing as the holder of power of attorney donated by Mariam Binti Ali Salim)
Plaintiff
James Nzaro B. Kalama
Defendant
3rd-9th Defendants (names not specified)
Defendant
1st Defendant (in person)
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal of Suit
Legal Issues
- 1 Whether the current suit should be dismissed due to abatement of a previous similar suit against the defendants' father.
- 2 Whether the plaintiff was required to revive the previous suit rather than file a fresh suit against the defendants.
- 3 Whether the cause of action against the current defendants is distinct from that against their late father.
Ratio Decidendi
The court found that the amended plaint disclosed a distinct cause of action against the current defendants, separate from the abated suit against their late father. The defendants' own affidavit confirmed their continued occupation of the suit property in their own capacity, which the plaintiff alleges constitutes trespass. The court held that the plaintiff was not required to revive the previous suit but was entitled to bring a fresh suit against the current defendants for their alleged independent acts. The application for dismissal was therefore without merit and was dismissed to allow the substantive dispute over land to proceed to hearing.
Court Disposition
application dismissed
Orders
- The defendant's application for dismissal of the suit is dismissed.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMALINDI
CIVIL SUIT 103 OF 2009
SHARIFF ALI SALIM suing as the holder of power of attorney
donated by MARIAM BINTI ALI SALIM.......................PLAINTIFF
VERSUS
JAMES NZARO B. KALAMA....................................DEFENDANT
RULING
1. Before me is the Defendants\\\' application filed on17. 10. 11 and expressed to be brought under Order 24 rule 7 Civil Procedure Rule seeking the dismissal of the Plaintiff\\\'s suit.
In summary, the chief ground relied on by the Defendant\\\'s is that a previous similar suit HCC No. 44 of 2005 brought by the Plaintiff against the Defendants` father one NGUMBAO CHAI abated after his death.That the Plaintiff should have “revived” that suit rather than file this fresh suit against the sons of the deceased, the subject matter being a parcel of land to which the Defendants lay claim.
3. The application is opposed by the Plaintiff. Although no replying affidavit was filed the Respondent\\\'s counsel filed written submission as did counsel for the applicants.
4. Having carefully considered the amended Plaint filed on 26/8/11, and the submissions by the respective counsel I am persuaded that the application has no merit and must be dismissed because;- a. The amended plaint clearly shows the cause of action against the Defendant, as clearly separate from then late father. The Defendants in their affidavit affirm their continued occupation of the suit property, in the own capacity, the action which the plaintiff pleads to be trespass.
b. This is a dispute involving land and in a very real sense,livelihoods are at stake. The dispute itself has a long history and no useful purpose can be served by delaying it further through the filing of one interlocutory application after another.
Let the parties take steps to prepare and draw the suit for hearing so that the substantive issues can be determined once and for all. Costs will be in the cause.
Delivered and signed at Malindi this 30th day of July, 2012 in the presence of Mr Otara for 3-9th Defendant, Mr Mouko for the Plaintiff, 1st Defendant in person, c/c-Evans/Leah.
C.W.MEOLI JUDGE