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ELCDismissedMiscellaneous Application dated 4th August 2023 (arising from the Estate of Onesmus Nyamai Kyengo, Succession Cause No. 107 of 2009)· [2024] KEELC 1641 (KLR)

Nyamai v Nyamai (Environment & Land Miscellaneous Case E002 of 2023) [2024] KEELC 1641 (KLR)

Environment and Land Court
20 March 2024
NMN. A. Matheka
985 words in judgment
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The bottom line

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A Mombasa court refused to evict a widow through a shortcut application, ruling final eviction orders require a full hearing, not a miscellaneous application.

What this practically means

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Executive summary

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The Plaintiff/Applicant, son and executor of the estate of Onesmus Nyamai Kyengo (deceased), brought an application dated 4th August 2023 under Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act and Order 40 rules 1 and 2 of the Civil Procedure Rules, seeking a permanent injunction and eviction of the Defendant/Respondent from Plot No. 2639NI/MN, Hamisi Estate, Changamwe, on the basis that the respondent was not named in the deceased's will dated 5th May 2004, was not a beneficiary, and was intermeddling with the estate. He relied on a confirmed grant in Succession Cause No. 107 of 2009 and a High Court ruling of 14th June 2023 excluding the respondent as an heir. The respondent opposed the application, contending that she is the widow of the deceased and the applicant's step-mother, that she has lived in the matrimonial house since the 1960s, that the deceased never wrote the alleged will, and that the will is fraudulent and under DCI investigation. The court, per N.A. Matheka J, noted that the applicant had also filed a plaint in the Chief Magistrate's court seeking similar orders, and held that substantive orders capable of resolving a contested issue with finality cannot be issued in a miscellaneous application, citing Witmore Investment Limited and Nairobi West Hospital Limited. Concluding that the matter requires a full hearing, the court dismissed the application with costs to the respondent on 20th March 2024.

Key legal issues

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01

Whether a permanent injunction and eviction order can be granted through a miscellaneous application

Holding

No - such substantive and final orders cannot issue in a miscellaneous application

Reasoning

The court applied Witmore Investment Limited and Nairobi West Hospital, holding that where a party seeks an order that resolves a contested issue with finality, the application ceases to be interlocutory. Order 3 Rule 1 provides that suits are commenced by plaint, petition or originating summons, not a miscellaneous application. The respondent's occupation raised contested issues requiring full hearing.

p. 2
02

Whether the respondent should be evicted from the suit premises as a non-beneficiary

Holding

The eviction claim could not be determined on the application; it requires a full hearing

Reasoning

The respondent asserted she is the widow of the deceased living in her matrimonial house since the 1960s and that the alleged will is fraudulent and under DCI investigation. The applicant claimed she is not a beneficiary under a confirmed grant. These contested issues of fact could not be resolved on the miscellaneous application.

p. 3

Legal principles established

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  • Substantive orders that resolve with finality a contested issue cannot be granted in a miscellaneous application; a suit must be commenced by plaint, petition or originating summons.

Court orders

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  1. 1.The application dated 4th August 2023 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63
  • Civil Procedure RulesOrder 40 rules 1 and 2; Order 3 Rule 1

Cases cited (2)

  • Witmore Investment Limited v County Government of Kirinyaga & 3 Others
    (2016) eKLR
  • Nairobi West Hospital Limited v Joseph Kariha & Another
    (2018) eKLR
Jurisdiction invoked
Sections 1A & 1B, 3, 3A and 63 of the Civil Procedure Act and Order 40 rules 1 and 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyamai v Nyamai (Environment & Land Miscellaneous Case E002 of 2023) [2024] KEELC 1641 (KLR)", Case Analysis (2024). Miscellaneous Application dated 4th August 2023 (arising from the Estate of Onesmus Nyamai Kyengo, Succession Cause No. 107 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1641/eng@2024-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.