[2018] KEELC 2472 (KLR)
The court found that the application for eviction and summary judgment was irregularly filed because the suit had been stayed by consent and the stay had not been set aside. As such, no further proceedings, including the present application, could be entertained. Additionally, the existence of a counterclaim by the...
Source-derived case information.
- Citation
- [2018] KEELC 2472 (KLR)
- Parties
- Plaintiff: Victoria Wambui Njoroge & Another (Suing as the administrators of the estate of Njoroge Mugo); Defendant: Evans Kageche Boro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 497 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Eviction Orders, Summary Judgment, Mesne Profits, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victoria Wambui Njoroge & Another (Suing as the administrators of the estate of Njoroge Mugo)
Plaintiff
Evans Kageche Boro
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application for eviction and summary judgment was properly before the court in light of the stay order.
- 2 Whether summary judgment or eviction can be granted at the interlocutory stage given the existence of a counterclaim and disputed facts.
- 3 Whether the defendant's claim of having paid the full purchase price and improvements to the property precludes summary judgment.
Ratio Decidendi
The court found that the application for eviction and summary judgment was irregularly filed because the suit had been stayed by consent and the stay had not been set aside. As such, no further proceedings, including the present application, could be entertained. Additionally, the existence of a counterclaim by the defendant regarding improvements and payment of the purchase price, as well as the challenge to the consent and the subdivision of the land, meant that there were substantial disputes of fact. These disputes precluded the grant of summary judgment or eviction at the interlocutory stage. The court therefore dismissed the application for being both procedurally improper and...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 10th January 2018 is dismissed for being irregularly filed and lacking merit.
- There shall be no order as to costs as the respondent had not filed any replying affidavit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO. 497 OF 2011
VICTORIA WAMBUI NJOROGE & ANOTHER
(Suing as the administrators of the estate ofNjoroge Mugo ) ................ PLAINTIFF
=VERSUS=
EVANS KAGECHE BORO .............................................................. DEFENDANT
RULING
1. This is a ruling in respect of a Notice of Motion dated 10th January 2018 which seeks the following prayers:-
1. Spent
2. Spent
3. That the defendant – Evans Kageche Boro- be evicted from the suit premises being L.R No. 398/17 forthwith.
4. That in the alternative, summary judgement be entered against the defendant as prayed in the plaint.
5. That quantum of Mesne profit be conversed by way of formal proof.
6. That the O.C.P.D – Naivasha be ordered to supervise and ensure that eviction order is fully executed.
7. That the costs of this application and of eviction be paid by the defendant.
2. This suit was stayed by consent on 4th October 2017 pending the hearing and determination of ELC case No. 255 of 2011. The advocate for the plaintiffs then was M/s Kingara & Co. Advocates. The Advocates for the defendant then as in the present is M/s S Musalia Mwenesi Advocates. The firm of Gichuki Kingara & Co. Advocates took over from M/s Kingara & Co. Advocates who then filed the present application.
3. The consent staying this suit was never set aside and therefore the filing of this application was un-procedural as no further proceedings can be taken after a suit is stayed. Even if there was no order staying these proceedings an order of eviction cannot be granted through an application at interlocutory stage. The respondent has filed a counter claim in which he is seeking costs of improvements to the suit property. The respondent is also contending that he had paid full purchase price in respect of the suit property before he was issued with a notice to vacate the suit premises.
4. There can be no summary judgement granted in this matter as the defendant/respondent is challenging the consent which was filed and even goes on to state that even after the consent was entered and the original land sub-divided into four portions, he had been given the first option to purchase from the owners of the sub divided portions. He goes on to state that he paid the purchase price for this particular suit property. It is therefore clear that no summary judgement can be entered in the circumstances. I therefore proceed to dismiss the notice of motion dated 10. 1.2018 for not only having been filed irregularly but also for lacking merit. There shall be no order as to costs as the respondent had not filed any replying affidavit.
It is so ordered
Dated, Signed and delivered at Nairobi on this 28thday of May 2018.
E.O.OBAGA
JUDGE
In the absence of applicant’s counsel who were aware of the date and time of delivery of Ruling.
Court Assistant: Hilda
E.O.OBAGA
JUDGE