[2011] KEHC 248 (KLR)
The court held that while the Defendant's objection regarding the form of the application (summons instead of motion) was technically valid under the new rules, dismissing the application solely on this basis would contravene the overriding objective of the Civil Procedure Act, which is to facilitate the just,...
Source-derived case information.
- Citation
- [2011] KEHC 248 (KLR)
- Parties
- Plaintiff: Wambui Mathenge; Plaintiff: Daniel Gichuki Mathenge; Plaintiff: Nancy Wangari Mathenge; Plaintiff: Purity Muthoni Mwangi; Defendant: Rachael Karungari Kingori
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 of 2010
- Procedural Posture
- Civil Case / Interlocutory Application (summons for Prohibitory Order)
- Outcome
- Application allowed; prohibitory order granted.
- Legal Topics
- Adverse Possession, Interlocutory Injunctions, Prohibitory Orders, Form of Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambui Mathenge
Plaintiff
Daniel Gichuki Mathenge
Plaintiff
Nancy Wangari Mathenge
Plaintiff
Purity Muthoni Mwangi
Plaintiff
Rachael Karungari Kingori
Defendant
Procedural Posture
Civil Case / Interlocutory Application (summons for Prohibitory Order)
Legal Issues
- 1 Whether the Plaintiffs are entitled to a prohibitory order to preserve the suit land pending determination of the suit.
- 2 Whether the application is fatally defective for being brought by summons instead of motion under the new rules.
Ratio Decidendi
The court held that while the Defendant's objection regarding the form of the application (summons instead of motion) was technically valid under the new rules, dismissing the application solely on this basis would contravene the overriding objective of the Civil Procedure Act, which is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. The court found that the Plaintiffs had established a prima facie case for the preservation of the suit land, as the Defendant did not controvert the allegation of an intended sale. Therefore, the court allowed the application for a prohibitory order, with costs to abide the outcome of the suit.
Court Disposition
Application allowed; prohibitory order granted.
Orders
- A prohibitory order is to be registered against L.R. NO. THEGENGE/KARIA/38 pending the hearing and determination of the suit.
- Costs of the application to abide the outcome of the suit.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO. 122 OF 2010
WAMBUI MATHENGE..........................................................1ST PLAINTIFF
DANIEL GICHUKI MATHENGE............................................2ND PLAINTIFF
NANCY WANGARI MATHENGE.........................................3RD PLAINTIFF
PURITY MUTHONI MWANGI..............................................4TH PLAINTIFF
VERSUS
RACHAEL KARUNGARI KINGORI.……...........................….DEFENDANT
RULING
This ruling is the outcome of the Summons dated 17th May 2011 in which Wambui Mathenge and three others pray for a prohibitory order to be registered against L.R. NO. THEGENGE/KARIA/38. The summons is supported by the affidavit of Nancy Wangari Mathenge the 3rd Plaintiff herein. Rachael Karungari Kingori, the Defendant herein, opposed the Summons by filing her replying affidavit.
It is the submission of the Plaintiffs that the registered owner of L.R. NO. THEGENGE/KARIA/38 intends to sell the land in dispute before this suit is heard and determined. The Defendant urged this Court to reject the Motion because the same lacks in merit. She stated that the Summons is an application unknown in law having been outlawed by the new rules.
I have considered the material placed before this Court plus the oral submissions presented by learned counsels. In the substantive suit, the Plaintiffs herein are seeking to be declared to have acquired the suit land by adverse possession vide the Originating Summons dated 20th September 2010. The suit is yet to be heard and the Plaintiffs are now praying for the title to the land to be preserved pending the hearing and the determination of the case. The Plaintiffs have specifically deponed that the Defendant intends to sell the land. The Defendant has not deemed it fit to controvert the aforesaid allegations. The main ground raised by the Defendant against the Summons is that of want of form. It is argued that the application should have been by way of Motion as opposed to that of Summons. To be fair to the Defendant, the ground appears to be valid. The new rules outlawed the use of Chamber summons in applications. Basically the Defendant has urged this Court to dismiss the summons for want of form. I do not think I should do so. If I do so I will be going against the overriding principle underSection 1A of the Civil Procedure Act. Disputes should be determined on its merits and not on the basis of technicalities which do not go to the root of the case.
In the end I am convinced the Summons has merit. It is allowed with costs abiding the outcome of the suit.
Dated and delivered at Nyeri this 21st day of October 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mrs. Mung’athia holding brief Nyaanga for the Plaintiff. No appearance Mindo for Defendant.