[2007] KEHC 1365 (KLR)
The court found that the respondent, having entered appearance but failed to file any response or opposition to the application, and having expressly stated in court that he was not opposing the application, left the applicant's request for directions unchallenged. The court exercised its discretion under Order...
Source-derived case information.
- Citation
- [2007] KEHC 1365 (KLR)
- Parties
- Plaintiff: Giordano Ernesto Italo Notollone; Defendant: Alfred M. Omwancha
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 21 of 2007
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Directions
- Outcome
- Application granted as prayed; directions issued for filing of response and taxation of fees; costs in the cause.
- Legal Topics
- Directions on Procedure, Failure to File Response, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giordano Ernesto Italo Notollone
Plaintiff
Alfred M. Omwancha
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Directions
Legal Issues
- 1 Whether the court should issue directions for the expedient determination of the applicant's claim.
- 2 Whether the respondent should be compelled to file a response within a specified period.
- 3 Whether directions as to costs and taxation of any fee claim by the respondent should be given.
Ratio Decidendi
The court found that the respondent, having entered appearance but failed to file any response or opposition to the application, and having expressly stated in court that he was not opposing the application, left the applicant's request for directions unchallenged. The court exercised its discretion under Order XXXVI Rule 8A of the Civil Procedure Rules to grant the orders sought, directing the respondent to file any response within seven days, to lodge and tax any claim for fees within thirty days, and ordered that costs be in the cause. The decision was based on the need for procedural expediency and the absence of any contest from the respondent.
Court Disposition
Application granted as prayed; directions issued for filing of response and taxation of fees; costs in the cause.
Orders
- The respondent shall file any response he may wish to file within seven (7) days from the date of this order.
- In the event the respondent has a claim for fees, such claim shall be lodged and taxed within thirty (30) days from the date of this order.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Case 21 of 2007
GIODANO ERNESTO ITALO NOTOLLONE................................................PLAINTIFF
VERSUS
ALFRED M. OMWANCHA……………................................................….DEFENDANT
R U L I N G
By a chamber summons dated 19th June 2007 pursuant to the provisions of Order XXXVI Rule 8A of the Civil Procedure Rules, the applicant seeks orders.
1) That the honourable Court be pleased to give directions as are necessary for the expedient determination of the applicant’s claim.
2) That directions for the payments of Cost of and incidental to this application be given.
The application is based on the grounds:-
1. That it appears from the record of the honourable Court, that the respondent has entered appearance to the originating summons filed. He has not filed his replying affidavit nor any other form of response to the claim.
2. That it is necessary that directions are given so that this matter can progress.
The application is supported by the annexed affidavit of Giordano Ernesto Italo Notollone sworn on the 19th day of June 2007.
For the applicant, it was argued that the respondent has entered appearance to the originating summons but has neither filed replying affidavit or any other form of response thereto.
That in the circumstances the court should give directions that:
i) the respondent does file any response he m ay wish to file within 7 days of the date of the orders granted by the court
ii) should the respondent have a claim for fee, his claim be taxed within a time to be stated in the order directing such taxation
iii) any other or further order the court may deem fit to grant
iv) directions as to the costs of the proceedings.
The respondent did not file any grounds of opposition or replying affidavit. The respondent further repeated in court that he was not opposing the application.
In the foregoing circumstances the application is granted in the following terms:
i) the respondent does file any response he may wish to file within seven (7) days from the date of this order
ii) in the event the respondent have a claim for fees, such claim be lodged and taxed within 30 days from the date of this order
iii) Costs be in the cause.
Dated and delivered at Malindi this 3rd day of September 2007.
N.R.O.OMBIJA
JUDGE
Mr.Mouko } for respondent.
Mr.Kinyua} for applicant.