[2017] KEELC 1963 (KLR)
The court found that both parties, through their respective counsel, agreed to compromise the application for leave to file a defence in the interest of justice. The court considered the absence of prejudice to either party and the need to facilitate the just and expeditious determination of the matter. Accordingly,...
Source-derived case information.
- Citation
- [2017] KEELC 1963 (KLR)
- Parties
- Plaintiff: Charles Onyango Menya; Defendant: Kenya Forest Service
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 132 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application for Leave to File Defence
- Outcome
- Application compromised by consent; leave granted to file defence.
- Judges
- GMA Ongondo
- Legal Topics
- Leave to File Defence, Compromise of Application, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Onyango Menya
Plaintiff
Kenya Forest Service
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Leave to File Defence
Legal Issues
- 1 Whether the defendant should be granted leave to file a defence out of time.
- 2 Whether the compromise of the application by consent of parties is in the interest of justice.
Ratio Decidendi
The court found that both parties, through their respective counsel, agreed to compromise the application for leave to file a defence in the interest of justice. The court considered the absence of prejudice to either party and the need to facilitate the just and expeditious determination of the matter. Accordingly, the court granted the defendant 30 days to file and serve the defence, with a corresponding period for the plaintiff to file a reply, and set a mention date for pre-trial directions.
Court Disposition
Application compromised by consent; leave granted to file defence.
Orders
- The defendant is granted 30 days from the date hereof to file and serve the defence on the plaintiff's counsel.
- The plaintiff's counsel to file and serve a reply, if any, within 30 days from the date thereof.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MIGORI
ELC NO. 132 OF 2017
(Formely Kisii Elc case no. 327 of 2015)
CHARLES ONYANGO MENYA…………………………………………….PLAINTIFF
VERSUS
KENYA FOREST SERVICE……………………………………………..DEFENDANT
RULING
1. A Notice of Motion dated 6/6/2017 is brought under Order 36 Rules 2,4 and 7 of the Civil Procedure Rules 2010 and Section 1A, 1B and 3A of the Civil Procedure Act Cap 21 laws of Kenya. It seeks orders;-
a. THAT this Honourable court be pleased to grant leave to the Defendant to file the defence to the plaint dated 2nd December 2015.
b. THAT the costs of this application.
2. The application is supported by attached documents “LYI” and an affidavit sworn by Laure Yego Advocate based on three (3) grounds namely:-
a. THATthe defendant entered an appearance on 18th January 2016 and later instructed firm of Nyamweya Mamboleo Advocate to enter an appearance on its behalf which was not done (Annexed hereto and marked as LY-1 is a copy of the memorandum of appearance dated 18th January 2017 and filed on 21st January 2017);
b. THATthe matter is coming up for mention on 17th July 017 to confirm compliance with Order 11 ; and
c. THATthe parties herein will not suffer any prejudice if this application is allowed.
3. The Applicant/Plaintiff is represented by P.Ochwangi instructed by Oguttu Mboya and Co. Advocates. The Respondents/Defendant are represented by Ms. Opiyo instructed by Omulele and Tollo Advocates.
4. I have studied the Notice of Motion and heard both counsel herein. They have agreed to compromise the Notice of Motion in the interest of justice as governed under Article 159 (2) (a) (b) and (d) 2010. I am also aware of Order 7 Rule 1 Civil Procedure Rule, 2010 in respect of defence.
5. Therefore Notice of Motion is compromised in the terms that ;-
a. The defendant granted 30 days from the date hereof to file and serve the defence on the plaintiff counsel.
b. The plaintiff s counsel to file and serve a reply, if any, within 30 days from the date thereof.
c. Mention for pre-trial directions on 27/9/2017.
DELIVERED, SIGNED and DATED in open court at MIGORI this 17th day of July 2017.
G.M.A. ONGONDO
JUDGE
In the presence of :-
Mr. Onchwangi for the Plaintiff/Applicant
Ms. Opiyo for Defendant/Respondent
Tom – Court Assistant