[2015] KEHC 6660 (KLR)
The court found that, although the applicant sought summary judgment on the basis that the defendants had not entered appearance or filed a defence, the record showed that both the 1st and 2nd defendants had in fact filed defences and replying affidavits. The 1st defendant was in occupation of part of the suit...
Source-derived case information.
- Citation
- [2015] KEHC 6660 (KLR)
- Parties
- Applicant: Clive Mutiso; Respondent: Joseph Ndambuki Wambua; Respondent: Leah Kakindu; Respondent: Anthony Kakindu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1of 20 of 2010
- Procedural Posture
- Land and Property Suit / Ruling on Application for Summary Judgment and Leave to Defend
- Outcome
- Application for summary judgment declined; leave to defend granted.
- Judges
- CM Kariuki
- Legal Topics
- Summary Judgment, Leave to Defend, Ownership Dispute, Mesne Profits, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clive Mutiso
Applicant
Joseph Ndambuki Wambua
Respondent
Leah Kakindu
Respondent
Anthony Kakindu
Respondent
Procedural Posture
Land and Property Suit / Ruling on Application for Summary Judgment and Leave to Defend
Legal Issues
- 1 Whether the defendants are entitled to leave to defend the suit despite alleged failure to enter appearance or file defence.
- 2 Whether the plaintiff is entitled to summary judgment for possession, mesne profits, and costs as prayed in the plaint.
- 3 Whether the circumstances of the case require a full hearing on the merits to determine ownership and rights over the suit property.
Ratio Decidendi
The court found that, although the applicant sought summary judgment on the basis that the defendants had not entered appearance or filed a defence, the record showed that both the 1st and 2nd defendants had in fact filed defences and replying affidavits. The 1st defendant was in occupation of part of the suit property, and both defendants raised substantive issues regarding ownership and entitlement to the land. Given the conflicting claims and the nature of the dispute, the court held that the matter should be heard fully on its merits to determine the truth of the parties' respective claims. Accordingly, the court declined to grant summary judgment and instead granted the defendants...
Court Disposition
Application for summary judgment declined; leave to defend granted.
Orders
- Defendants to file and serve all their papers within 30 days.
- Applicant at liberty to file further documents within 21 days of service.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO.1OF 2010
CLIVE MUTISO………..………………………….. PLAINTIFF/APPLICANT
VERSUS
JOSEPH NDAMBUKI WAMBUA……..1ST DEFENDANT/RESPONDENT
LEAH KAKINDU….…………….….2ND DEFENDANT/RESPONDENT
ANTHONY KAKINDU …………….… 3RD DEFENDANT/RESPONDENT
R U L I N G
By a Plaintdated 30. 12. 09 the Plaintiff/Applicant filed instant suit on 5. 1.2010. The service of summons was effected and after the lapse of the prescribed period no defendants filed defence or enter appearance. On 1. 2.2010 the Applicant filed motion dated 1. 2.2010 under order XXXV Rules 2 and 3 Civil Procedure Rules then in force. The Applicant sought judgment as prayed in the Plaint.
On Record I find a defence by the 1st Defendant filed on 10. 2.2010 which has not been expunged from the record. There is also a replying affidavit sworn by the 1st Defendant on 25. 8.2010 and filed on 10. 9.2010. Further the 1st Defendant filed a Preliminary Objection dated 20. 1.2014 on 21. 1.2014. It also emerges that the 2nd Defendant filed defence on 18. 11. 014 together with a replying affidavit she swore on 17. 11. 2014. The Applicant application is supported by his affidavit sworn on 29th January, 2010.
The Applicant bases his application on the ground that the Respondent never entered appearance or file defence. He further states that he seeks possession of the suit property which the Defendants have invaded. He also seeks mesne profit damages and costs. On paragraph 13 of the Plaint, the Applicant pleads that in June 2009 the Defendants entered suit property destroyed sisal boundary markers, uprooted grass and the 1st Defendant commenced construction of a building and other works without the knowledge or permission of the Plaintiff.
The Applicant bases his claim on an agreement dated 2. 10. 1991 between him and a deceased person husband of the 2nd Defendant and father of the 3rd Defendant. The 1st Defendant avers in paragraph 6 of the Defence that he owns ¼ acre of parcel 7–133 and the Plaintiff owns 2 acres of the same but not 2¼. The 2nd Defendant avers on paragraph 6 of the Defence that she is the sole owner of the suit land and had right to sell to the 1st Defendant.
Under order XXXV Rules 2 and 3 and particular sub-section 2, the Defendant is required to show either via affidavit or oral evidence or otherwise that he should have leave to defend the suit. The material before court and an Applicant Admission, the Defendants and especially Defendant No.1 is in the occupation of the part of the suit property. The Applicant has not disclosed whether he occupies in the affidavit or not he seeks possession.
The 2nd Defendant avers that she is the owner and had right to sell the same to the 1st Defendant. The circumstances of this case demands that the parties be heard fully on merit to determine the truth of the matter. The court is inclined taking into account that this is a land matter to grant Respondents leave to defend to make a fair determination of the matter. The court thus declines to grant summary judgment and makes the following orders:
The Defendants to file and serve all their papers within 30 days.
The Applicant is at liberty to file further documents within 21 days of service.
Directions to be heard within 60 days.
Orders accordingly. Parties at liberty to take date for directions as directed.
SignedandDelivered at Machakos, this 30th day of January, 2015.
CHARLES KARIUKI
JUDGE