[2019] KEELC 2446 (KLR)
The court found that the plaintiff failed to file any substantive response to the application to strike out the suit, despite being granted two opportunities to do so. The only affidavit on record was filed by John Ndiema, who was not formally joined as a party. The court considered the contents of Ndiema's...
Source-derived case information.
- Citation
- [2019] KEELC 2446 (KLR)
- Parties
- Plaintiff: Anthony Wanjala Milimo; Defendant: Timothy Wafula Walukana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 32 of 2017
- Procedural Posture
- Land Case / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out with costs to the defendant
- Judges
- FM Njoroge
- Legal Topics
- Striking Out Suit, Reasonable Cause of Action, Road Access Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Wanjala Milimo
Plaintiff
Timothy Wafula Walukana
Defendant
Procedural Posture
Land Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff's suit discloses a reasonable cause of action against the defendant.
- 2 Whether the ex-parte evidence exonerates the defendant from the plaintiff's claim.
- 3 Whether the pendency of the suit is prejudicial to the defendant.
Ratio Decidendi
The court found that the plaintiff failed to file any substantive response to the application to strike out the suit, despite being granted two opportunities to do so. The only affidavit on record was filed by John Ndiema, who was not formally joined as a party. The court considered the contents of Ndiema's affidavit and the County Surveyor’s Report, which indicated that the road in question served both Ndiema’s and the plaintiff’s plots, and that Ndiema had not closed the road. In the absence of any evidence or argument from the plaintiff to the contrary, the court concluded that the plaintiff had no reasonable cause of action against the defendant. Consequently, the suit was struck out...
Court Disposition
suit struck out with costs to the defendant
Orders
- The plaintiff’s suit against the defendant is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 32 OF 2017
ANTHONY WANJALA MILIMO..................PLAINTIFF
VERSUS
TIMOTHY WAFULA WALUKANA.........DEFENDANT
RULING
1. By an application dated 20/12/2018 and filed in court on 28/2/2019 the defendant sought for orders that the suit herein against the defendant be struck out with costs to the defendant and costs of this application be borne by the respondent.
2. The grounds relied upon are that the plaintiff suit does not disclose a reasonable cause of action against the defendant; that the ex-parte evidence has exonerated the applicant from the plaintiff’s claim and that the pendency of this suit is prejudicial to the applicant.
3. The application is not opposed by the plaintiff. However there is a replying affidavit irregularly filed on 27/6/2019 by one John Ndiema who has not been formally made a party in these proceedings despite the court order dated 13/2/2019 that he be joined.
4. I have noted that on 6/5/2019 Mr. Wanyama for the respondent prayed for 7 days to respond to the application dated 20/12/2018 which leave was granted and mention of the matter scheduled for 13/5/2019. On the latter date Ms. Mengich holding brief for Mr. Wanyama prayed for 2 days to file a response which the court granted. All parties were also on that date ordered to file submissions on the application.
5. I have compared the contents of the replying affidavit of John Ndiema dated 25/2/2019 and the contents of the County Surveyor’s Report dated 24/9/2018 and I have also considered the mutation form whose copy is exhibited in that affidavit as well as the absence of any comment by the plaintiff on the matters contained in those documents and the application. If the plaintiff had a good rejoinder to the allegations in the application dated 20/12/2018 he would have utilized the two opportunities granted by this court to file the same. Further if John Ndiema has conceded in writing in this matter that he has not closed the road which serves the plaintiff’s plot and his own plot then I do not think that the plaintiff has any good case against the defendant for the reason that that road must be serving John Ndiema’s plot as well as the plaintiff’s. I hereby strike out the plaintiff’s suit against the defendant with costs.
Dated, signed and delivered at Kitale on this 8th day of July, 2019.
MWANGI NJOROGE
JUDGE
8/7/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Defendant - present
John Ndiema - present
N/A for plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
8/7/2019