Automated Summary
Key Facts
The applicants (Muiruri & 3 others) filed a motion to restrain the respondent (Chador Auctioneers) from demolishing their building at Jamhuri Market, Thika, using a decree from Thika ELC Case No. 411 of 2017. The court noted that the applicants are already involved in the 2017 case as interested parties and ruled that the current application is an improper final order outside a properly instituted suit, deeming the motion incompetent and striking it out.
Issues
The court addressed whether the applicants' Notice of Motion, seeking to restrain the respondent from demolishing their building using a decree they were not parties to, constituted a valid legal process. The motion was deemed incompetent as a Notice of Motion cannot serve as an originating process under the Civil Procedure Rules, and the application risked duplicating efforts in an ongoing case (Thika ELC 411 of 2017) where the applicants are already involved as interested parties.
Holdings
The court ruled that the Applicants' Notice of Motion was incompetent and struck it out without orders regarding costs, as it was improperly filed outside an ongoing suit and against a decree in which the Applicants are not parties.
Legal Principles
The court applied the principle that a Notice of Motion cannot serve as an originating process to institute a suit. It emphasized that motions must be filed within a properly instituted action via Plaint, Petition, or Originating Summons, citing Order 51 Rule 1 of the Civil Procedure Rules and Section 1A of the Civil Procedure Act.
Cited Statute
- Civil Procedure Rules
- Civil Procedure Act
Judge Name
J G KEMEI
Passage Text
- This Court is not persuaded that it has been properly moved to entertain this Application in the instant manner in light of a live suit and a Judgement therein whose decree is annexed as DKM2. This action amounts to vexing the limited Court's time and resources and duplication of efforts contrary to the spirit of the provisions of Sections 1A Civil Procedure Act.
- The motion is incompetent and it is for striking out with no orders as to costs.
- The Applicants herein are the 2nd, 3rd, 4th and 1st Interested Parties in Thika ELC 411 of 2017. Presently that matter awaits Ruling of a Preliminary Objection on 7th December 2023 and without saying no more the Applicants are actively participating in the litigation.