[2013] KEHC 5484 (KLR)
Once a petition has been struck out as res judicata, the High Court is functus officio and cannot entertain further interlocutory applications for stay or injunction in relation to the struck out petition. The proper forum for any interim relief is the appellate court where the appeal is pending. Allowing the...
Source-derived case information.
- Citation
- [2013] KEHC 5484 (KLR)
- Parties
- Applicant: Simon Musili Musyoka; Applicant: Peter Kitavi Mwei; Applicant: Michael Nzioka Muliu; Respondent: Commissioner of Lands; Respondent: The Chief Lands Registrar; Respondent: City Council of Nairobi; Respondent: Minister of State for Provincial Administration & Internal Security; Respondent: The Hon. The Attorney General; Respondent: James Gamau Wainaina; Respondent: Simon Muturi Wanguo; Respondent: Raphael Muigai Mwangi; Respondent: Paul Kahuthi Kondia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 923 of 2012
- Procedural Posture
- Constitutional Petition / Post Striking Out; Interlocutory Applications for Stay and Injunction After Petition Struck Out
- Outcome
- Pending applications to be prosecuted or withdrawn; interim orders not extended; failure to prosecute will result in dismissal for want of prosecution.
- Judges
- MM Gitumbi
- Legal Topics
- Res Judicata, Interlocutory Injunctions, Stay of Execution, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Musili Musyoka
Applicant
Peter Kitavi Mwei
Applicant
Michael Nzioka Muliu
Applicant
Commissioner of Lands
Respondent
The Chief Lands Registrar
Respondent
City Council of Nairobi
Respondent
Minister of State for Provincial Administration & Internal Security
Respondent
The Hon. The Attorney General
Respondent
James Gamau Wainaina
Respondent
Simon Muturi Wanguo
Respondent
Raphael Muigai Mwangi
Respondent
Paul Kahuthi Kondia
Respondent
Procedural Posture
Constitutional Petition / Post Striking Out; Interlocutory Applications for Stay and Injunction After Petition Struck Out
Legal Issues
- 1 Whether the court should entertain interlocutory applications for stay and injunction after the petition was struck out as res judicata.
- 2 Whether interim orders should be extended pending appeal to the Court of Appeal.
- 3 Whether the applications should be dismissed for want of prosecution.
Ratio Decidendi
Once a petition has been struck out as res judicata, the High Court is functus officio and cannot entertain further interlocutory applications for stay or injunction in relation to the struck out petition. The proper forum for any interim relief is the appellate court where the appeal is pending. Allowing the applications to remain unresolved would unfairly prejudice the Respondents and create uncertainty. The court therefore directed the Petitioners to either prosecute or withdraw their pending applications, failing which the applications would be dismissed for want of prosecution. The court also declined to extend any interim orders arising from the applications.
Court Disposition
Pending applications to be prosecuted or withdrawn; interim orders not extended; failure to prosecute will result in dismissal for want of prosecution.
Orders
- Petitioners to proceed with their pending applications or withdraw them and pursue the appeal alone.
- Failure to prosecute the applications will result in dismissal for want of prosecution.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. CASE NO. 923 OF 2012
SIMON MUSILI MUSYOKA………...………….….……….1ST PETITIONER
PETER KITAVI MWEI……………….……………….…… 2ND PETITIONER
MICHAEL NZIOKA MULIU…………………..…………….3RD PETITIONER
(ON THEIR OWN BEHALF AND ON BEHALF OF 1,500 OWNERS OF PLOTS
IN MWENGENYE SETTLEMENT SCHEME, EMBAKASI AREA, NAIROBI.)
VERSUS
COMMISSIONER OF LANDS ………………….....…….1ST RESPONDENT
THE CHIEF LANDS REGISTRAR ……….………..........2ND RESPONDENT
CITY COUNCIL OF NAIROBI………….….…….......…...3RD RESPONDENT
MINISTER OF STATE FOR PROVINCIAL
ADMINISTRATION & INTERNAL SECURITY….......…....4TH RESPONDENT
THE HON. THE ATTORNEY GENERAL……..........….......5TH RESPONDENT
JAMES GAMAU WAINAINA………………......….......…..6TH RESPONDENT
SIMON MUTURI WANGUO………………………......…....7TH RESPONDENT
RAPHAEL MUIGAI MWANGI……………..…….…........…8TH RESPONDENT
PAUL KAHUTHI KONDIA………………………...........…..9TH RESPONDENT
RULING
This Petition was struck out with costs to the Respondents by this court on 19th April 2013.
Thereafter, the Petitioner filed two consecutive applications namely:
Notice of Motion dated 22/4/13 seeking a stay of the ruling delivered by this court on 19th April 2013.
Notice of Motion dated 28/5/13 seeking an injunction restraining the Respondents from evicting the Petitioners from the Suit Land.
In respect of Notion of Motion dated 22/4/13, a temporary stay was granted until 14/5/13. A Preliminary Objection was raised against this application which was to be heard on 26/6/13. The court extended interim orders to 26/6/13.
In respect of the Notice of Motion dated 28/5/13, the court granted a restraining order for 14 days against the Defendants from evicting the Plaintiffs from the Suit Land. Up till 12/6/13. This was fixed for hearing on 26/6/13 and interim orders were extended to 26/6/13.
On 26/6/13 when the two applications and Preliminary Objection came up for hearing, Counsel for the Petitioners indicated that he does not intend to prosecute his applications as he had already filed an appeal at the Court of Appeal where a Status quo order had been granted.
This position was objected to by Counsels for the Respondents who maintained that the two applications should be dismissed forthwith on the ground that the Petition was struck off and there is no positive order in existence requiring to be stayed. Counsel also maintained that if the Petitioners had gone to the Court of Appeal, then they should pursue any conservatory orders from the Court of Appeal and not this court.
It is true that this court struck out the Petition on 19/4/13, on the ground, that the Petition was res-judicata. The Petitioner’s next course of action was to proceed to the Court of Appeal which they did. This court is opposed to allowing the Petitioner’s two pending applications to remain hanging on the necks of the Respondents as they await the determination of the Appeal in the Court of Appeal. Accordingly, I hereby direct that the Petitioner proceed with their pending applications or withdraw them altogether and pursue the appeal alone. The Petitioners are directed that failure to prosecute their applications will result in the same being dismissed for want of prosecution. Further, this court is not amenable to extending interim orders arising from the two cited applications.
It is so ordered.
SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JULY 2013.
MARY M. GITUMBI
JUDGE