[2017] KEELC 166 (KLR)
The court found that the application was res judicata, as a similar application had already been heard and allowed, and the applicant had already testified on the basis of the pleadings filed by the previous advocate. The court further held that the application was not brought under the correct provisions of the...
Source-derived case information.
- Citation
- [2017] KEELC 166 (KLR)
- Parties
- Plaintiff: Giriama Central Association and Property Management; Defendant: Ayub Shero Baluchi; Defendant: Omar Mohsen Ahmed Mohammed; Defendant: Mwakasa Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 216 of 2012
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Set Aside Service and Pleadings
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Setting Aside Service, Change of Advocates, Res Judicata, Pleadings Struck Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Giriama Central Association and Property Management
Plaintiff
Ayub Shero Baluchi
Defendant
Omar Mohsen Ahmed Mohammed
Defendant
Mwakasa Limited
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Set Aside Service and Pleadings
Legal Issues
- 1 Whether the service of summons and plaint upon the defendant should be set aside.
- 2 Whether the pleadings filed by M/s Ananda And Company Advocates should be expunged from the record.
- 3 Whether the application is res judicata.
Ratio Decidendi
The court found that the application was res judicata, as a similar application had already been heard and allowed, and the applicant had already testified on the basis of the pleadings filed by the previous advocate. The court further held that the application was not brought under the correct provisions of the Civil Procedure Rules, as Order 51 Rule 3 deals with ex parte applications. The applicant, having chosen to proceed with the defence filed by the previous advocate and having concluded his evidence, could not now seek to set aside the service and pleadings. The application was therefore found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 24th July 2017 is dismissed.
- Costs be on the cause.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
CIVIL CASE NO 216 OF 2012
GIRIAMA CENTRAL ASSOCIATION AND PROPERTY MANAGEMENT...PLAINTIFF
VERSUS
AYUB SHERO BALUCHI
OMAR MOHSEN AHMED MOHAMMED
(name struck out by order of court made on 2. 4.2014)
MWAKASA LIMITED...........................................................................… DEFENDANTS
RULING
1. This is the Notice of Motion dated 24th July 2017. It is brought under Section 1A, 3A of the Civil Procedure Act, Order 51 Rule 3 of the Civil Procedure Rules.
2. It seeks orders;
a) That the purpoted service of summons and plaint upon the defendant be set aside and the defendant is granted leave to enter appearance under protest and file a statement of defence, in place of the appearance and defence filed by M/s Ananda And Company Advocates.
b) That the pleadings filed by M/s Ananda And Company Advocates are set aside, and/or expunged from the record upon filing of necessary papers under 1 above.
3. The grounds are on the face of the application and are listed as paragraph 1-7.
4. The application is supported by the affidavit sworn by Ayub Shero Baluch, the 1st defendant herein sworn on the 24th February 2017.
5. The application is opposed. There are grounds of opposition filed by the plaintiff/respondents counsel dated 27th March 2017.
6. It was agreed between the parties that the application be disposed by way of written submissions.
7. I have considered the Notice of Motion together with the supporting affidavit. I have also considered the grounds of opposition and the written submissions of counsels.
8. I agree with the plaintiff’s counsel’s submissions that the application is res judicata. The 1st defendant’s/applicant application dated 13th February 2017 was heard and allowed. The 1st defendant was examined in chief, cross examined and re-examined.
9. Having filed the Notice of Change of Advocates means that the present advocate took over the matter from M/s Ananda and Company Advocates.
10. This application ought to have preceded the one dated 13th February 2017. The defendant has already testified and concluded his evidence. What will happen to his evidence if this application was to be allowed?
11. I find that this application is not brought under the correct provisions of the Civil Procedure Rules. Order 51 Rule 3 deals with exparte applications.
12. I have considered the grounds upon which this application was brought and I find that the same are not merited.
13. The 1st defendant chose to give his evidence on the strength of the defence filed by Mr. M. A. Ananda advocate. He cannot turn around and disown it.
14. I find this application is not merited and the same is dismissed. The costs be on the cause.
It is so ordered.
DATED, SIGNED and DELIVERED atMombasa on the11th day ofDecember, 2017.
L. KOMINGOI
JUDGE
11/12/2017
Nodria : I seek leave to appeal and to have certified copies of the ruling.
L. KOMINGOI
JUDGE
Court: Leave to appeal is granted, the 1st defendant to have certified copies of ruling upon payment.
L. KOMINGOI
JUDGE