[2011] KEHC 551 (KLR)
The court found that both Defendants had been properly served with the Plaint and Summons, as evidenced by affidavits of service. They had also entered appearance and filed a joint defence through their advocates. The defence was subsequently struck out for reasons already explained in a prior ruling, and...
Source-derived case information.
- Citation
- [2011] KEHC 551 (KLR)
- Parties
- Plaintiff: Ann Wanjiku Gachie; Plaintiff: Pity Wanjiru Gachie; Defendant: Mwai Wamugunda; Defendant: Michael Mutugi Gacheru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 97 of 2009
- Procedural Posture
- Civil Case / Ruling on Adjournment Application Prior to Formal Proof
- Outcome
- Application for adjournment by the 1st Defendant declined; matter to proceed to formal proof.
- Legal Topics
- Adjournment of Hearing, Formal Proof, Service of Process, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Wanjiku Gachie
Plaintiff
Pity Wanjiru Gachie
Plaintiff
Mwai Wamugunda
Defendant
Michael Mutugi Gacheru
Defendant
Procedural Posture
Civil Case / Ruling on Adjournment Application Prior to Formal Proof
Legal Issues
- 1 Whether the 1st Defendant's application for adjournment should be granted to allow time to file necessary applications for defence.
- 2 Whether the Defendants were properly served with pleadings and hearing notices.
- 3 Whether the application for adjournment was made in good faith.
Ratio Decidendi
The court found that both Defendants had been properly served with the Plaint and Summons, as evidenced by affidavits of service. They had also entered appearance and filed a joint defence through their advocates. The defence was subsequently struck out for reasons already explained in a prior ruling, and interlocutory judgment was entered for the Plaintiffs. The court doubted the bona fides of the 1st Defendant's application for adjournment, noting that both Defendants and their advocates had been served with the hearing notice for formal proof. The application for adjournment was therefore not granted, and the court directed that a hearing date for formal proof be set.
Court Disposition
Application for adjournment by the 1st Defendant declined; matter to proceed to formal proof.
Orders
- Registry to give a hearing date for formal proof in November 2011.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 97 OF 2009
ANN WANJIKU GACHIE................................................................................1ST PLAINTIFF
PITY WANJIRU GACHIE...............................................................................2ND PLAINTIFF
VERSUS
MWAI WAMUGUNDA.................................................................................1ST DEFENDANT
MICHAEL MUTUGI GACHERU..................................................................2ND DEFENDANT
R U L I N G
This matter was scheduled for hearing the Formal Proof on 19/10/2011. Mr. Nganga who had come on record applied for an adjournment saying his client the 1st Defendant had never been aware of this case and was appearing in court for the first time. He therefore wanted time to put in the necessary application to enable him to well defend himself. This application was opposed by the Plaintiffs’ counsel Mr. Muchira.
This Ruling could not be done on time because of the long sitting by the court.
I have had the opportunity of reading through the record herein.
Each defendant herein was served with a Plaint and Summons as is evidenced by the affidavits of service dated 9/7/2009 and 24/9/2009. They were separately served on 3/7/2009 and 14/7/2009 respectively.
-On 23rd July 2009 M/s Fatuma Wanjiku Advocates filed a Memorandum of Appearance for both Defendants.
-And on 27th July 2009 the said firm filed a joint Defence for the Defendants.
-On 12/10/2010 this court being satisfied that the Defendants had been served allowed the firm of Fatuma Wanjiku to cease acting for the Defendants.
-Meanwhile a Notice of Change of advocates was filed by Nyasani N. & Co. Advocates to act for the 2nd Defendant. That’s the much about representation.
-Again in a Ruling dated 22/11/2010 this court struck out the Defendants’ defence and interlocutory Judgment was entered in favour of the Plaintiffs hence the Formal Proof.
The reasons for striking out the Defence are well explained in the Ruling. I therefore have no reason to get into that arena again. The counsel for the 2nd Defendant was served with the hearing notice and so was the 1st Defendant. I doubt that the application by the 1st Defendant is made in good faith.
Since the matter could not be heard on 19th October 2011, I hereby direct the Registry to give a hearing date for Formal Proof in the month of November 2011.
DATED, DELIVERED AND SIGNED AT EMBU THIS 26TH DAY OF OCTOBER 2011.
H. I. ONG’UDI
JUDGE