[2012] KEHC 3971 (KLR)
The court found that the only executable order arising from the dismissal of the suit for want of prosecution was for recovery of costs, as there was no counterclaim or prior order for eviction. The defendant's application for eviction and related orders was therefore not supported by the pleadings or the court's...
Source-derived case information.
- Citation
- [2012] KEHC 3971 (KLR)
- Parties
- Plaintiff: Wilson Njoroge Kamau; Defendant: Ng’ang’a Muceru Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 350 of 2005
- Procedural Posture
- Civil Suit / Ruling on Post Dismissal Application for Eviction
- Outcome
- application dismissed
- Judges
- FI Koome
- Legal Topics
- Dismissal for Want of Prosecution, Eviction Orders, Execution of Costs, Adverse Possession, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Njoroge Kamau
Plaintiff
Ng’ang’a Muceru Kamau
Defendant
Procedural Posture
Civil Suit / Ruling on Post Dismissal Application for Eviction
Legal Issues
- 1 Whether the defendant is entitled to an order of eviction against the plaintiff after the suit was dismissed for want of prosecution.
- 2 Whether the court can grant substantive orders such as eviction where there was no counterclaim and no such order was previously made.
- 3 Whether granting an eviction order would contradict an existing interim injunction from another court.
Ratio Decidendi
The court found that the only executable order arising from the dismissal of the suit for want of prosecution was for recovery of costs, as there was no counterclaim or prior order for eviction. The defendant's application for eviction and related orders was therefore not supported by the pleadings or the court's previous orders. Furthermore, granting the eviction order would contradict an existing interim injunction issued by the High Court in Nyeri, which restrained the defendant from interfering with the suit land. As such, the application was declined and no orders as to costs were made.
Court Disposition
application dismissed
Orders
- The application for eviction and related orders is declined.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
CIVIL SUIT 350 OF 2005
WILSON NJOROGE KAMAU ……………………………………..PLAINTIFF
VERSUS
NG’ANG’A MUCERU KAMAU …..…………….……………….. DEFENDANT
RULING
On the 2nd day of March 2011, this suit was dismissed for want of prosecution with costs to the Defendant.
On 12th April, 2011, the Defendant who is acting in person filed a Chamber summons application seeking for an order of eviction against the Plaintiff from L.R. No. Loc. 2/Kangari/506. He also sought for an order that the O.C.S. Kigumo Police Station do provide security and the District Land Registrar, Muranga, to remove a caution lodged over the suit land.
This application was opposed by the Defendant on the grounds that the Plaintiff filed H.C.C.C. No. 22 of 2011 [OS] at Nyeri in which he is claiming ownership of the suit premises by virtue of the principle of adverse possession. The Plaintiff has annexed a copy of an interim order of injunction that was issued against the applicant restraining him from interfering with the suit land. Thus, an order of eviction will contradict the order by the High Court in Nyeri.
Besides the above order, this is a strange application that is seeking for very substantive orders. The applicant is the Defendant in this suit which was dismissed for want of prosecution.
The order that can be executed arising out of the order by Muchelule, J, of 2nd March, 2011, that dismissed the suit for want of prosecution is only for recovery of costs.
I have perused the pleadings especially the defence by the applicant. There was no counter claim and therefore, the orders that are sought for eviction were not made by the court.
For the aforesaid reasons, I decline to allow the application. There will be no orders as to costs.
Ruling read and signed this 3rd day of February, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 30th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.