[2019] KEELC 4700 (KLR)
The court held that the statement of defence filed by Ananda & Co advocates remains properly on record following the notice of change of advocates. The 1st defendant's disowning of the defence during testimony does not, at this interlocutory stage, invalidate his right to participate in the proceedings or call...
Source-derived case information.
- Citation
- [2019] KEELC 4700 (KLR)
- Parties
- Plaintiff: Giriama Central Associates & Property Management Limited; Defendant: Ayub Shero Baluchi; Defendant: Mwakasa Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 216 of 2012
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- AA Omollo
- Legal Topics
- Preliminary Objection, Striking Out Pleadings, Right to Be Heard, Defence on Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giriama Central Associates & Property Management Limited
Plaintiff
Ayub Shero Baluchi
Defendant
Mwakasa Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the 1st defendant has a defence on record entitling him to participate in the hearing by calling witnesses.
- 2 Whether the 1st defendant's disowning of his statement of defence invalidates his right to present evidence.
- 3 Whether the plaintiff's objection is premature before all evidence is presented.
Ratio Decidendi
The court held that the statement of defence filed by Ananda & Co advocates remains properly on record following the notice of change of advocates. The 1st defendant's disowning of the defence during testimony does not, at this interlocutory stage, invalidate his right to participate in the proceedings or call witnesses. The determination of whether the 1st defendant has raised a reasonable defence is a matter for the final judgment after all parties have presented their evidence. Therefore, the plaintiff's preliminary objection is premature and without merit.
Court Disposition
preliminary objection dismissed
Orders
- The plaintiff's preliminary objection is dismissed as premature and devoid of merit.
- Costs are ordered in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
CIVIL SUIT NO. 216 OF 2012
GIRIAMA CENTRAL ASSOCIATES & PROPERTY .
MANAGEMENT LIMITED........................................................................PLAINTIFF
-VERSUS-
1. AYUB SHERO BALUCHI
2. OMAR MOHSEN AHMED MOHAMED (Name struck out by Order of 2. 4.2014)
3. MWAKASA LIMITED........................................................................DEFENDANTS
RULING
1. This ruling is in respect of a preliminary objection raised by the plaintiff on whether or not the 1st defendant has a defence on record and therefore entitled to participate in the hearing by calling witnesses. The basis for the objection is that during the 1st defendant’s testimony de benese, the 1st defendant disowned his statement of defence filed by Ananda & Co advocates on 24th November 2015.
2. The preliminary objection is opposed by Mr Kimani for the 1st defendant. Mr Kimani submitted that the plaintiff was drawing inference that the pleadings have been struck out yet the taking of evidence on February 2017 and dismissal of the 1st defendant’s application on 11th December 2017 are not synonymous with striking out pleadings. That the prayers sought are a direct affront to the provisions of article 50 of the Constitution.
3. I have taken into consideration the objection raised and the submissions rendered in support of and against it. This matter is yet to be fully heard as only the 1st defendant has given his testimony. In the ruling rendered on 11th December 2017, Komingoi J while dismissing the application seeking to expunge the contentious statement of 1st defendant’s defence stated thus at paragraph 9 of her ruling:
“Having filed the notice of change of advocates means that the present advocates took over the matter from Ms Ananda & Co advocates.”
4. My understanding of this phase is that the documents filed by Ananda & Co advocates were deemed to have been properly on record. This Court was not made aware of any appeal filed against this decision. Therefore the statement made by the 1st defendant during his testimony disowning such a defence can only be determined at the final stage i.e. at judgment writing on whether the 1st defendant has raised a reasonable defence to the plaintiff’s claim.
5. It is thus premature for the plaintiff to ask the Court to make such a determination at this stage before all the parties to the suit have presented their evidence. Consequently on the basis that there is a defence on record, the 1st defendant cannot be barred from calling witnesses in support of his case. Consequently I find the objection raised to be premature, devoid of merit and is hereby dismissed with costs ordered in the cause.
Dated, signed & delivered at Mombasa this 15th February 2019
A. OMOLLO
JUDGE