[2018] KEELC 3315 (KLR)
The court found that the defendants failed to prove their counter-claim as they were not present in court to do so. The mere presence of a substituted party, without active prosecution or evidence, was insufficient to sustain the counter-claim. Consequently, the counter-claim was dismissed for want of prosecution...
Source-derived case information.
- Citation
- [2018] KEELC 3315 (KLR)
- Parties
- Plaintiff: Catherine Ciegoki Kithaka (as legal representative of Luke Kithure Mutiga); Defendant: Jonathan Kithaka Iguna; Defendant: Another (not named)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Counter Claim After Dismissal of Main Suit
- Outcome
- Counter-claim dismissed for want of prosecution and lack of proof.
- Judges
- FM Njoroge
- Legal Topics
- Counter Claims, Proof of Claims, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Ciegoki Kithaka (as legal representative of Luke Kithure Mutiga)
Plaintiff
Jonathan Kithaka Iguna
Defendant
Another (not named)
Defendant
Procedural Posture
Land and Property Suit / Ruling on Counter Claim After Dismissal of Main Suit
Legal Issues
- 1 Whether the defendants proved their counter-claim after the plaintiff's suit was dismissed.
- 2 Whether one defendant can prove a counter-claim in the absence of the other defendant.
- 3 Whether the counter-claim should be dismissed for want of prosecution.
Ratio Decidendi
The court found that the defendants failed to prove their counter-claim as they were not present in court to do so. The mere presence of a substituted party, without active prosecution or evidence, was insufficient to sustain the counter-claim. Consequently, the counter-claim was dismissed for want of prosecution and lack of proof.
Court Disposition
Counter-claim dismissed for want of prosecution and lack of proof.
Orders
- The defendants' counter-claim is dismissed.
- No costs are awarded concerning the counter-claim.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 143 OF 2017
FORMERLY MERU ELC CASE NO. 155 OF 2011 (OS)
CATHERINE CIEGOKI KITHAKA (as legal representative of
LUKE KITHURE MUTIGA)......................................................PLAINTIFF
VERSUS
JONATHAN KITHAKA IGUNA & ANOTHER.................DEFENDANTS
RULING
1. This court dismissed the plaintiff’s suit on 3rd May, 2018. The defendants were directed to prove their counter-claim on 8th May, 2018.
2. On 8th May, 2018, Miss Munga informed the court that the defendants were not in court. She also indicated that she was not aware that the matter was coming up in court for the defendants to prove their counter-claim.
3. Mr. Murango Mwenda asked the court to dismiss the counter-claim because the defendants were not in court and, therefore, could not prove their claim.
4. Miss Munga countered that the wife of the 1st defendant was in court and had been substituted for her husband. Upon perusal of the court file, it is true that Catherine Ciegoki Kithaka was substituted as the 1st defendant in place of her deceased husband vide this court’s ruling dated 15th July, 2017.
5. Mr. Mwenda replied that one defendant could not prove a counter claim in the absence of the other defendant.
6. I have considered the pertinent issues. I do find that the defendants have not proved their counter-claim.
7. In the circumstances, the defendants’ counter-claim is dismissed.
8. No costs concerning the counter-claim are awarded.
9. It is so ordered.
Delivered in open Court at Chuka this 15th day of May, 2018 in the presence of:
CA: Ndegwa
Kiongo h/b Murango Mwenda for Rimita
Rimita for the defendants – Absent
Catherine Ciegoki Kithaka – 1st Defendant
P. M. NJOROGE
JUDGE