[2021] KEELC 3348 (KLR)

[2021] KEELC 3348 (KLR)

The court found that the 2nd and 3rd defendants were not properly served with summons to enter appearance and the plaint, as evidenced by the affidavit of service and the record. The parties, through their advocates, entered into a consent exempting the 2nd and 3rd defendants from execution of the judgment and decree, and marking the application as heard and determined. The court adopted the consent as its order, effectively granting the relief sought by the 2nd and 3rd defendants. The application was thus marked as determined as between the 1st plaintiff and the 2nd and 3rd defendants, with no order as to costs.

Citation
[2021] KEELC 3348 (KLR)
Parties
Plaintiff: Gilbert Gitari Bore; Plaintiff: Omari Marijan Omari; Defendant: Kenya Urban Roads Authority; Defendant: The Administrator – Chuka Township; Defendant: The County Government of Tharaka Nithi; Defendant: Hyper Constructions & Equipment Company Ltd
Court
Environment and Land Court
Court Station
Environment and Land Court at Chuka
Jurisdiction
Kenya
Judgment Date
12 May 2021
Case Number
Environment & Land Case 01 of 2020
Procedural Posture
Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
Outcome
application marked as determined by consent; 2nd and 3rd defendants exempted from execution of judgment and decree; no order as to costs
Legal Topics
Service of Process, Setting Aside Judgment, Stay of Execution, Default Judgment
Source Language
English
Civil Procedure Land and Property Service of Process Setting Aside Judgment Stay of Execution Default Judgment

Case Brief

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Parties

Gilbert Gitari Bore

Plaintiff

Omari Marijan Omari

Plaintiff

Kenya Urban Roads Authority

Defendant

The Administrator – Chuka Township

Defendant

The County Government of Tharaka Nithi

Defendant

Hyper Constructions & Equipment Company Ltd

Defendant

Procedural Posture

Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution

Legal Issues

  1. 1 Whether the 2nd and 3rd defendants were properly served with summons to enter appearance and the plaint.
  2. 2 Whether the judgment delivered on 13th October 2020 against the 2nd and 3rd defendants should be set aside for lack of service.
  3. 3 Whether a stay of execution of the judgment and decree should be granted against the 2nd and 3rd defendants.

Ratio Decidendi

The court found that the 2nd and 3rd defendants were not properly served with summons to enter appearance and the plaint, as evidenced by the affidavit of service and the record. The parties, through their advocates, entered into a consent exempting the 2nd and 3rd defendants from execution of the judgment and decree, and marking the application as heard and determined. The court adopted the consent as its order, effectively granting the relief sought by the 2nd and 3rd defendants. The application was thus marked as determined as between the 1st plaintiff and the 2nd and 3rd defendants, with no order as to costs.

Court Disposition

application marked as determined by consent; 2nd and 3rd defendants exempted from execution of judgment and decree; no order as to costs

Orders

  • The 2nd and 3rd defendants are exempt from execution of judgment delivered on 13th October 2020 together with the consequent decree.
  • The application dated 28th January 2021 is marked as heard and determined.