[2011] KEHC 3556 (KLR)
The court found that the applicant had satisfied all procedural requirements for entry of interlocutory judgment against the 2nd and 3rd respondents, including proper service of process and obtaining leave of court as mandated by the Civil Procedure Rules. The application was unopposed, and affidavits of service...
Source-derived case information.
- Citation
- [2011] KEHC 3556 (KLR)
- Parties
- Applicant: Francis Pepela Wanjala; Respondent: Hezron Walusuna Wanjala; Respondent: The Land Registrar – Bungoma; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2009
- Procedural Posture
- Civil Suit / Interlocutory Application for Leave to Enter Judgment Against Non Appearing Respondents
- Outcome
- Application allowed; interlocutory judgment entered against 2nd and 3rd respondents.
- Judges
- FN Muchemi
- Legal Topics
- Interlocutory Judgment, Default Judgment Against Government, Land Title Cancellation, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Pepela Wanjala
Applicant
Hezron Walusuna Wanjala
Respondent
The Land Registrar – Bungoma
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Civil Suit / Interlocutory Application for Leave to Enter Judgment Against Non Appearing Respondents
Legal Issues
- 1 Whether the applicant is entitled to interlocutory judgment against the 2nd and 3rd respondents for failure to enter appearance and file defence.
- 2 Whether the requirements under Order IX A Rules 5, 7 and 11 of the Civil Procedure Rules for entry of interlocutory judgment against the government have been satisfied.
Ratio Decidendi
The court found that the applicant had satisfied all procedural requirements for entry of interlocutory judgment against the 2nd and 3rd respondents, including proper service of process and obtaining leave of court as mandated by the Civil Procedure Rules. The application was unopposed, and affidavits of service demonstrated that the respondents were duly notified. Consequently, the court granted the application and entered interlocutory judgment against the 2nd and 3rd respondents, with the matter to proceed to formal proof.
Court Disposition
Application allowed; interlocutory judgment entered against 2nd and 3rd respondents.
Orders
- Leave granted for entry of interlocutory judgment against the 2nd and 3rd respondents.
- Interlocutory judgment entered against the 2nd and 3rd respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO.30 OF 2009
FRANCIS PEPELA WANJALA............................................................................................APPLICANT
~VRS~
HEZRON WALUSUNA WANJALA.........................................................................1ST RESPONDENT
THE LAND REGISTRAR – BUNGOMA.................................................................. 2ND RESPONDENT
THE HON. ATTORNEY GENERAL.........................................................................3RD RESPONDENT
RULING
The Plaintiff/Applicant Francis Pepela Wanjala sues the three Respondents for a declaration that land parcel BOKOLI/MISIKHU/1182 belongs to the Plaintiff and for cancellation of 1st Defendant’s title to the land. The 1st Defendant denies the claim in his written statement of defence filed by Nyachiro & Co. Advocates on 26/06/2009. The 2nd and 3rd Respondents failed to enter appearance and filed defence.
In the application dated 16/09/2009, the Plaintiff seeks for leave under Order IX A Rules 5, 7 and 11 of the Civil Procedure Rules for entry of interlocutory judgment against the 2nd and 3rd Respondents. The Plaintiff served the Permanent Secretary, Ministry of Lands with notice of intention to sue dated 28/01/2009. The 3rd Defendant was also duly served. This suit was filed on 22/04/2009. Service of the plaint and summons to enter appearance were served on the 2nd and 3rd Respondents as shown by the affidavits of service sworn by Cleveland Mwebi dated 16/09/2009. This application was also served on the 3rd Respondent on the 05/07/2010 as shown by the affidavit sworn by Cleveland Mwebi on 12/10/2010 and copy of duly stamped hearing notice. The Respondents did not reply to the application. It is a requirement under Order IX A Rules 5, 7 and 11 that before interlocutory judgment is entered against the Government whose principal legal representative is the Attorney General, leave be obtained from court. This application is unopposed. All the requirements have been satisfied by the Applicant. I allow the application dated 16/09/2009 as prayed. In essence interlocutory judgment is hereby entered against the 2nd and 3rd Respondents. The matter to be fixed for formal proof. Costs of this application to the Applicant in the cause.
…………………………..
F. N. MUCHEMI
JUDGE
Ruling dated and delivered on the 10th day of March, 2011 in the presence of Mrs. Change for Mwebi for the Applicant.
……………………………..
F. N. MUCHEMI
JUDGE