[2022] KEELC 14757 (KLR)
The court found that the plaintiff had not been made aware of the counterclaim in a conventional and clear manner, and that proceeding with the hearing under such circumstances would be prejudicial to the plaintiff. The court emphasized that a counterclaim is a separate suit and must be properly served and...
Source-derived case information.
- Citation
- [2022] KEELC 14757 (KLR)
- Parties
- Plaintiff: Ethics and Anti-Corruption Commission; Defendant: Jacob Baiya; Defendant: 2nd defendant; Defendant: Mr. Chepkwony
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 256 of 2018
- Procedural Posture
- Environment and Land Case / Ruling on Adjournment Due to Late Awareness of Counterclaim
- Outcome
- Hearing adjourned to allow plaintiff to respond to counterclaim.
- Judges
- FM Njoroge
- Legal Topics
- Counterclaim Procedure, Service of Pleadings, Adjournment, Prejudice to Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ethics and Anti-Corruption Commission
Plaintiff
Jacob Baiya
Defendant
2nd defendant
Defendant
Mr. Chepkwony
Defendant
Procedural Posture
Environment and Land Case / Ruling on Adjournment Due to Late Awareness of Counterclaim
Legal Issues
- 1 Whether the hearing should proceed when the plaintiff was unaware of the counterclaim and has not responded to it.
- 2 Whether proceeding would be prejudicial to the plaintiff given the manner of service and presentation of the counterclaim.
Ratio Decidendi
The court found that the plaintiff had not been made aware of the counterclaim in a conventional and clear manner, and that proceeding with the hearing under such circumstances would be prejudicial to the plaintiff. The court emphasized that a counterclaim is a separate suit and must be properly served and acknowledged. Given that the plaintiff had not responded to the counterclaim and that the manner of its presentation was irregular, the court determined that it would not be a prudent use of judicial time to proceed with the hearing. The court therefore adjourned the hearing to allow the plaintiff time to consider and respond to the counterclaim, and directed the plaintiff's counsel to...
Court Disposition
Hearing adjourned to allow plaintiff to respond to counterclaim.
Orders
- The present hearing is adjourned.
- Ms. Maina shall report to the court within 7 days concerning her client’s position regarding the counterclaim.
Full Case Text
Judgment text and source record
22 paragraphs
Ethics and Anti-Corruption Commission v Baiya & 3 others (Environment & Land Case 256 of 2018) [2022] KEELC 14757 (KLR) (14 November 2022) (Ruling)
Neutral citation: [2022] KEELC 14757 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case 256 of 2018
FM Njoroge, J
November 14, 2022
Between
Ethics and Anti-Corruption Commission
Plaintiff
and
Jacob Baiya & 3 others
Defendant
Ruling
1. Ms. Maina has stated that she requires more time to examine the counterclaim filed by the 2nd defendant which she was not aware of before today. The other counsel were ready to proceed. All except Mr. Chepkwony have been served with the counterclaim.
2. This is a strange situation where the counterclaim was obfuscated beneath a foliage of documents that are attached to a replying affidavit, which are also bound together. It was quite an exercise for the court to trace and find the counterclaim of the 2nd defendant this morning when Mr. Mongeri stated that a counterclaim had been filed on his behalf.
3. It is therefore no surprise that Ms. Maina appeared unaware of that counterclaim to date. The question that arises now is: should this court order the hearing to proceed or not in the light of the disclosure that the plaintiff was not aware of existence of the counterclaim and has not responded to it at all?
4. It is true that a counterclaim is a separate suit by itself and proceeding in the current circumstance where the plaintiff has conceded to not ever having seen the counterclaim may be prejudicial to the plaintiff. I have already stated that the defence and counterclaim were not presented to the court in the conventional manner and though Mr. Matiri avers the copy served upon him is court-stamped, the copy in the court file is not.
5. I take note that the plaintiff has called 3 witnesses and had a 4th witness ready to testify today. However, 2 more witnesses are yet to testify and it can be seen that the plaintiff’s case is far from closure.
6. Consequently, instead of having the present witness testify, and not knowing the future of this litigation if the court grants an adjournment to Ms. Maina for the purpose sought, and in particular whether there will be any need to recall any witnesses who have already testified.
7. I find that it would not be prudent application of valuable judicial time to have PW4, who had been sworn and was in the stand, testify. Consequently, I adjourn the present hearing and I order that Ms. Maina shall report to this court within 7 days concerning her client’s position regarding the counterclaim. This hearing is therefore adjourned. There will be a virtual mention by way of Microsoft Teams on November 22, 2022 for further directions.
DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT ON THIS 14TH DAY OF NOVEMBER, 2022. MWANGI NJOROGEJUDGE, ELC, NAKURU