[2008] KEHC 2642 (KLR)
The court held that interlocutory judgment cannot be entered on a counter-claim for land ownership, even where no defence to the counter-claim has been filed. The proper procedure is for the suit to be set down for hearing so that the issues can be determined on their merits. The Deputy Registrar does not have...
Source-derived case information.
- Citation
- [2008] KEHC 2642 (KLR)
- Parties
- Plaintiff: Wangui Karanja; Plaintiff: Salome Njeri Karanja; Defendant: Joseph Njenga Nganga; Defendant: Njane Kamau; Defendant: Francis Ndegwa; Defendant: Commissioner of Lands (represented by Attorney General)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1408 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Interlocutory Judgment on Counter Claim
- Outcome
- application dismissed with costs to the respondent; suit to be set down for hearing
- Legal Topics
- Interlocutory Judgment, Counter Claims, Land Ownership Disputes, Default Judgment Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wangui Karanja
Plaintiff
Salome Njeri Karanja
Plaintiff
Joseph Njenga Nganga
Defendant
Njane Kamau
Defendant
Francis Ndegwa
Defendant
Commissioner of Lands (represented by Attorney General)
Defendant
Procedural Posture
Civil Case / Ruling on Application for Interlocutory Judgment on Counter Claim
Legal Issues
- 1 Whether interlocutory judgment can be entered on a counter-claim for land ownership when no defence to the counter-claim has been filed.
- 2 Whether the Deputy Registrar has jurisdiction to enter interlocutory judgment in such circumstances.
Ratio Decidendi
The court held that interlocutory judgment cannot be entered on a counter-claim for land ownership, even where no defence to the counter-claim has been filed. The proper procedure is for the suit to be set down for hearing so that the issues can be determined on their merits. The Deputy Registrar does not have jurisdiction to enter interlocutory judgment in such cases. The application by the defendants for leave to enter interlocutory judgment against the Commissioner of Lands was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent; suit to be set down for hearing
Orders
- The application for leave to enter interlocutory judgment on the counter-claim is dismissed with costs to the respondent.
- The suit is to be set down for hearing.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1408 of 1998
1. Land and Environmental Division
2. Subject of main suit:-
Land ownership
LR11595
36. 5 acres
Muguga, Kabete area
3. Application by defendant 1 July 2005
Interlocutory judgment be entered against the Commissioner of Lands as prayed in the amended counter claim dated 28 March 2002
4. No response by both respondents due to failure to file reply
5. Held:
i) Deputy Registrar court not to enter Interlocutory Judgment
ii) No interlocutory Judgment is entered on a counter claim on a
claim for land
6. Case law – Nil
7. Advocates:
G.K. Kuria holding brief for P. Nganga of Kamau Kuria & Kiraitu & Co. Advocates for the plaintiff/respondent -present
S.K. Ritho of S.K. Ritho & Co. Advocates for the 1st and 3rd defendant/applicant
And plaintiff in counter claim.
J.K. Atanda of the Attorney General’s Chambers Advocate for the 4th defendant – present
2nd defendant absent but served
WANGUI KARANJA……………………………………… 1ST PLAINTIFF
SALOME NJERI KARANJA …………………………….. 2ND PLAINTIFF
VERSUS
JOSEPH NJENGA NGANGA ………....……………....1ST DEFENDANT
NJANE KAMAU ……………………………………… 2ND DEFENDANT
FRANCIS NDEGWA ………………….....……………. 3RD DEFENDANT
RULING NO.2
I: Application for leave to enter Interlocutory Judgment on a counter-claim by the defendants dated 1 July 2005
I: BACKGROUND OF APPLICATION
1. The subject of the main suit before this court touches on trespass allegedly committed by the defendants. The suit was filed on 25 June 1999. The defendants denied this tresspass and filed a defence and a counter-claim. The Hon. The Attorney General representing the Commissioner of Lands failed to file a reply to the counter- claim. The plaintiff and the Attorney General were served with the application of 1 July 2005 seeking leave for the deputy registrar to enter Interlocutory Judgment.
2. The applicants had requested the deputy registrar to enter the Interlocutory judgment. The said deputy registrar declined to do so. The applicant then filed this application and asks the court to so enter the said interlocutory judgment. The reasons being there had been no defence to the counter claim filed by the state.
3. To this application of 1 July 2005 it is unclear why there has been a delay in the same being heard. It has been about 2½ years.
4. This court noted none of the respondents the plaintiff and the state filed any documents in reply to oppose the said application.
II: FINDING
5. Where a defendant files a defence and counter claim and where no defence has been filed to and for the counter-claim the court does not enter Interlocutory Judgment against the Commissioner of Lands[1]. What indeed occurs is that the suit is set down for hearing.
6. I would reject this application and dismiss it with costs to the respondent. This suit be accordingly be set down for hearing.
Dated this 12 day of February 2008 at Nairobi.
M.A. ANG’AWA
JUDGE
G.K. Kuria holding brief for P. Nganga of Kamau Kuria & Kiraitu & Co. Advocates for the plaintiff/respondent -present
S.K. Ritho of S.K. Ritho & Co. Advocates for the 1st and 3rd defendant/applicant
And plaintiff in counter claim.
J.K. Atanda of the Attorney General’s Chambers Advocate for the 4th defendant – present
2nd defendant absent but served