PHILLIP LEMEITEI OLE SIRONKA V RUGA GITUKU [2012] KEHC 2636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATMACHAKOS

CIVIL CASE 108 OF 2011

PHILLIP LEMEITEI OLE SIRONKA.....................................................................................PLAINTIFF/APPLICANT

VERSUS

RUGA GITUKU...............................................................................................................DEFENDANT/RESPONDENT

R U L I N G

Before me is an application dated 14th June 2012, filed by the plaintiff, Phillip Lemetei Ole Sironka. The application was brought under Order 40 Rules 1, 2 & 3 of the Civil Procedure (Revised) Rules, and Section 3 and 3A of the Civil Procedure Act (Cap 21).

Learned counsel for the plaintiff, Mr Naikuni, has stated that what the plaintiff is now seeking is prayer 3, which reads:-

3. THAT the Defendant/Respondent by himself, his Agents, servants, personal representatives be restrained from interfering with, entering, alienating, wasting transferring, subdividing and/or dealing in any other transaction thereof with all those parcels of land Reference Kajiado – Kaputiei – North/2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886, 2887 and 2888 which is all that parcel of land known as LR No. Kajiado Kaputiei – North 1076 until the application is heard and finally determined by this Honourable Court hereof.

The application is opposed strongly. When learned counsel for the plaintiff, Mr Naikuni, made submissions in court, he clearly stated that the plaintiff’s interest for the moment is the grant of prayer 3.

The application however, will have to fail on a technical point. The proceedings herein were commenced by plaint. Prayer 3 is worded in such a way that once I make this ruling today, it will be superfluous. If this prayer was meant to be operative until another application is heard and determined, that specific application should have been specifically mentioned in that prayer. That was not done. This means that the application referred to in prayer 3 is the application dated 14th June 2012. The court cannot invent a prayer for litigant, and therefore I have to go by the prayer placed before me. The prayer sought has been spent. It is prayer 3.

I consequently find that the application, and specifically prayer 3 of the application dated 14th June 2012, is misconceived, and I strike out the application. Costs in the cause.

Dated and delivered this 10thday of   July 2012.

........................................

George Dulu

Judge

In the presence of:

Nyalo – Court clerk

Mr Lampo for Plaintiff/Applicant

N/A for Respondent