[2010] KEHC 834 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL CASE NO. 163 OF 2009

STEPHEN MBUTHIA GICHURIU

MICHAEL MURIUKI KARIA..........................................................................PLAINTIFF/APPLICANTS

CHRISTOPHER KABURIA GICHURIU

VERSUS

JACKSON NJOGU GICHURIU.......................................................1ST DEFENDANT/RESPONDENT

SAMMY MWANGI RUHARA...........................................................2ND DEFENDANT/RESPONDENT

ORDER ON DIRECTIONS

This Court heard the Summons dated 6th November 2009 and by its ruling delivered on 14th May 2010, the same was allowed in terms of prayers 2 and 4 as against the 1st Defendant but was dismissed as against the 2nd Defendant. On 4th October 2010, learned counsels appearing in this matter appeared for mention to seeking for the interpretation of this Court’s ruling delivered on 14th May 2010.

It is the submission of Mr. Karweru, learned advocate for SAMMY MWANGI RUHARA, the 2nd Defendant, that this Court dismissed the entire suit vide the aforesaid ruling. MR. KAMWENJIandLOMPO, learned advocates for the Plaintiff and the 1st Defendant respectively, were of the view that this Court merely dismissed the application dated 16th November 2009 and not the suit in its ruling of 14th May 2010.

I have carefully considered the divergence views taken by learned counsels. There is no dispute that what was before this Court on 20th April 2010 was the Summons dated 6th November 2009 in which the Plaintiffs sought for the following orders:

“THAT service of this application be dispensed with and this application be heard ex parte in the first instance.

THAT the 1st defendant/respondent by himself, agent or anybody else working under him by temporary injunction be restrained from selling, leasing, charging, or in any other way parting with possession of land parcel No. IRIA-INI/CHEHE/1446 pending the hearing and determination of this application inter parties and or until the hearing and determination of this suit.

THAT the 2nd defendant/respondent by himself, agents or anybody else working under him by a temporary injunction be restrained from selling, leasing, charging or in any other way parting with possession of land parcel No. IRIA-INI/CHEHE/1445 pending the hearing and determination of this application inter parties and or until the hearing and determination of this suit.

THAT costs of this application be provided for.”

The 2nd Defendant opposed the aforesaid application by filing a replying affidavit he swore on 12th February 2010. He also put forward grounds of opposition set out as follows:

(a)“THAT the suit is incurably defective having been instituted out of time for a tort of fraud.

(b)THAT the suit is a non-starter in law the initial registration having been by way of transmission which is not challengeable.

(c)THAT orders sought do not lie.”

The record shows that this court treated the aforesaid grounds as preliminary points of law against both the originating summons and the application. In the end this Court dismissed the entire application as against the 2nd Defendant. With respect, I agree with the submissions of Mr. Karweru, learned advocate for the 2nd Defendant that the correct interpretation of this Court’s ruling of 14th May 2010 is to the effect that the substantive suit (O.S. dated 6th November 2009) and the summons dated 9th November 2009 were dismissed as against the 2nd Defendant. The ruling allowed the prayers 2 and 4 as against Jackson Njogu Gichuriu, the 1st Defendant herein. It is clear that the suit against the 1st Defendant survived whereas that against the 2nd Defendant was concluded. These are the directions of this Court.

Dated and delivered at Nyeri this 7th day of October, 2010.

J. K. SERGON

JUDGE

In open court in the presence of Mr. Karweru for the 2nd Defendant and Mr. Kioni for the Defendants and no appearance for Kamwenji for Plaintiff.