Taruru v Kuyo & another (Civil Appeal 9 (CA 86 OF 2016) of 2016) [2024] KECA 1844 (KLR) (20 December 2024) (Judgment)
- Court
- Court of Appeal
- Case number
- 1844
- Citation
- [2024] KECA 1844 (KLR)
- Decided
- 20 December 2024
The appeal is allowed, the decision of the learned Judge is set aside, and the appellant's suit in the superior court is allowed with costs.
Facts
The 1st respondent filed a complaint against the 2nd respondent with the Olokruto Land Dispute Tribunal, which ordered the 2nd respondent to vacate a plot legally belonging to the 1st respondent. The appellant filed a suit in the High Court seeking an injunction and cancellation of the decree.
Issues
- Whether the superior court was right in striking out the appellant's case for being brought as a civil suit and not a constitutional petition.
- Whether the learned Judge's finding that the appellant's application was fatally defective for being brought under Section 63 (e) of the Civil Procedure Act was legally accurate.
Reasoning
The Court found that the appellant's application was not commenced in the right way and was thus fatally defective for being brought under Section 63 (e) of the Civil Procedure Act. The Court also found that the learned Judge's finding was legally inaccurate in light of Article 159 (2) (d) of the Constitution.
Outcome
Appeal allowed
Orders
- Decision of the learned Judge set aside
- Appellant's suit in the superior court allowed with costs
Authorities cited
Legislation (2)
- Civil Procedure Act
- Civil Procedure Rules
Cases cited (2)
- Gitobu Imanyara & 2 others v Attorney General [2016] eKLR
- Order 51 rule 10 of the Civil Procedure Rules
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