[2014] KEHC 7613 (KLR)
The court found that the defendant and her advocate failed to comply with the orders issued on 9th September 2013, specifically the service of the defence and counterclaim and payment of costs. No opposition or explanation was provided by the defendant or her advocate despite being served with the application to...
Source-derived case information.
- Citation
- [2014] KEHC 7613 (KLR)
- Parties
- Plaintiff: Eunice Wanjiru Chege; Defendant: Hannah Wanjiku Chege
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence and Enter Interlocutory Judgment
- Outcome
- Application allowed. Defence struck out. Interlocutory judgment entered. Suit transferred to Subordinate Court at Murang'a.
- Judges
- BN Olao
- Legal Topics
- Striking Out of Defence, Interlocutory Judgment, Non Compliance With Court Orders, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wanjiru Chege
Plaintiff
Hannah Wanjiku Chege
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence and Enter Interlocutory Judgment
Legal Issues
- 1 Whether the defendant's failure to comply with court orders warrants striking out the defence.
- 2 Whether interlocutory judgment should be entered as prayed in the plaint.
- 3 Whether the matter should be transferred to the Subordinate Court at Murang'a due to jurisdiction.
Ratio Decidendi
The court found that the defendant and her advocate failed to comply with the orders issued on 9th September 2013, specifically the service of the defence and counterclaim and payment of costs. No opposition or explanation was provided by the defendant or her advocate despite being served with the application to strike out the defence. In accordance with Order 10 Rule 3 of the Civil Procedure Rules, the court granted the orders sought in the Notice of Motion dated 27th November 2013, striking out the defence and entering interlocutory judgment as prayed in the plaint. Additionally, the court noted that the subject property, parties, and advocates are all based in Murang'a, and the matter...
Court Disposition
Application allowed. Defence struck out. Interlocutory judgment entered. Suit transferred to Subordinate Court at Murang'a.
Orders
- The defence herein is struck out.
- Interlocutory judgment is entered as prayed in the plaint.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH CURT OF KENYA AT KERUGOYA
ELC CASE NO. 12 OF 2012
EUNICE WANJIRU CHEGE .........................................PLAINTIFF
VERSUS
HANNAH WANJIKU CHEGE ...................................DEFENDANT
RULING
On 9th September 2013 in the presence of Mr. Kiriba advocate for the defendant/respondent herein, this Court did make orders one of which was that Mr. Kiriba do serve Mr. Njoroge advocate for the plaintiff/applicant herein with the defence and counter claim within 7 days of that ruling being delivered. Mr. Kiriba was also to personally meet the costs of Ksh. 2,000/=.
I am informed that to-date, Mr. Kiriba has not complied with those orders.
There is now before me an application dated 27th November 2013 seeking that the defence herein be struck out and interlocutory judgment be entered as prayed in the plaint. That application was served upon Mr. Kiriba on the same day i.e. 27th November 2013 but when the same came up for hearing on 29th January 2014, neither Mr. Kiriba nor his client were present in Court. The application is also not opposed.
Order 10 Rule 3 of the Civil Procedure Rules reads as follows:-
“Where a defendant fails to serve either the memorandum of appearance or defence within the prescribed time, the Court may on it’s own motion or on application by the plaintiff, strike out the memorandum of appearance or the defence as the case may be and make such orders as it deems fit in the circumstances”.
As indicated above, this application was not opposed and there was no appearance by either Mr. Kiriba or the defendant to explain why the orders issued on 9th September 2013 were not complied with. In the circumstances, this Court grants the orders sought in the Notice of Motion dated 27th November 2013 and costs thereof shall be borne by the defendant.
It is further noted from the pleadings herein that the property subject matter of this suit is situated in Murang’a and was sold at a consideration of Ksh. 100,000/=. The parties are also based in Murang’a and so too are the counsels. This matter is well within the jurisdiction of the Subordinate Court at Murang’a. It is therefore transferred to that Court where it will be mentioned on 3rd March 2014 to fix a date for formal proof.
B.N. OLAO
JUDGE
31ST JANUARY, 2014