[2017] KEELC 873 (KLR)
The court determined that in the interest of substantive justice and to ensure all material evidence is considered, the plaintiffs should be granted leave to file further affidavits in response to the defendants' application. This approach aligns with Article 159 of the Constitution, which emphasizes the need for...
Source-derived case information.
- Citation
- [2017] KEELC 873 (KLR)
- Parties
- Plaintiff: Bahati Temo; Plaintiff: William Mjape; Plaintiff: Stephen Kahindi Mwadzavi; Plaintiff: Charles Charo; Plaintiff: Johnson Koya; Plaintiff: Kesa Mjape; Plaintiff: Robert Rogo; Defendant: Swafiya Abdalla; Defendant: Fatuma Swale (as administratrix of the Estate of the late Swaleh Mahdi)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 155 of 1993
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Leave to File Further Affidavits
- Outcome
- Leave granted to plaintiffs to file further affidavits; corresponding leave to defendants to respond.
- Legal Topics
- Leave to File Further Affidavits, Valuation of Property, Compensation for Structures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bahati Temo
Plaintiff
William Mjape
Plaintiff
Stephen Kahindi Mwadzavi
Plaintiff
Charles Charo
Plaintiff
Johnson Koya
Plaintiff
Kesa Mjape
Plaintiff
Robert Rogo
Plaintiff
Swafiya Abdalla
Defendant
Fatuma Swale (as administratrix of the Estate of the late Swaleh Mahdi)
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Leave to File Further Affidavits
Legal Issues
- 1 Whether the plaintiffs should be granted leave to file further affidavits in response to the defendants' application.
- 2 Whether the court should consider the valuation report as reasonable compensation to the plaintiffs, excluding the 7th plaintiff.
Ratio Decidendi
The court determined that in the interest of substantive justice and to ensure all material evidence is considered, the plaintiffs should be granted leave to file further affidavits in response to the defendants' application. This approach aligns with Article 159 of the Constitution, which emphasizes the need for courts to administer justice without undue regard to procedural technicalities. The court also granted the defendants corresponding leave to respond to any further affidavits filed by the plaintiffs. The ruling did not make a final determination on the issue of compensation or the adequacy of the valuation report, instead focusing on procedural fairness and the right of both...
Court Disposition
Leave granted to plaintiffs to file further affidavits; corresponding leave to defendants to respond.
Orders
- Plaintiffs granted leave to file and serve further affidavits within 21 days.
- Defendants granted leave to file and serve any further response within 14 days of service of plaintiffs' further affidavits.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
CIVIL SUIT NO 155 OF 1993
BAHATI TEMO
WILLIAM MJAPE
STEPHEN KAHINDI MWADZAVI
CHARLES CHARO
JOHNSON KOYA
KESA MJAPE
ROBERT ROGO.................................................APPLICANTS/PLAINTIFFS
VERSES
SWAFIYA ABDALLA
FATUMA SWALE (as administerix of the Estate of the late
Swaleh Mahdi (Original Defendant))....DEFENDANTS/RESPONDENTS
RULING
1. The Application under consideration is the Defendants Notice of Motion dated 9th November 2011 and filed in Court on 11th November 2011 and brought under Sections, 34, 51 and 94 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules. I note from the Court record that on 27th November 2013, the Court (Mukunya, J) issued an order in respect to the said application upon hearing counsel for the Defendants and in the absence of the Plaintiffs who had been duly served with a hearing notice. When the matter came up before me on 10th October 2017, Mr. S. K. Kimani counsel for the Defendants/Applicants argued the Application and submitted that on 27th November 2013, the Court made an order for valuation and a valuation report dated 23rd June 2014 was made and filed on 28th August 2014. He urged the Court to consider the valuation as reasonable compensation to the Plaintiffs save for the 7th Plaintiff who had no structure and therefore is not entitled to any compensation.
2. The 5th Plaintiff filed a Notice of Intention to act in person and a Notice of Withdrawal of Suit on 6th October 2017. He however sought for time to consult his former advocate who is in Malindi. Although the 2nd, 3rd, 4th 6th and 7th Plaintiffs filed their Replying Affidavit on 25th September 2017, they sought for leave to file Further Affidavits in response to the Application.
3. I have considered the Submissions by both parties. It would be in the pursuit of substantive justice, in accordance with Article 159 of the Constitution to allow the Plaintiffs file the Further Affidavits as requested. This would enable the Court appreciate and consider all material evidence in order to reach a fair and just determination. I grant leave to the Plaintiffs to file and serve their Further Affidavits within 21 days from today. The Defendants are hereby granted corresponding leave to file and serve any further response to the Plaintiffs’ Further Affidavits within 14 days of service.
Orders accordingly.
Ruling dated, signed and delivered at Mombasa this 22nd day of November 2017
C. YANO
JUDGE