[2024] KEELC 13929 (KLR)
The court found that the matter was at an early stage, the defendant had not been shown to have obstructed justice, and there was an indication of a reasonable defence, including a related pending suit. In the interest of justice and in line with the right to be heard, the court exercised its discretion to set aside...
Source-derived case information.
- Citation
- [2024] KEELC 13929 (KLR)
- Parties
- Plaintiff: Siko Woche Imala; Defendant: Impact Investments Limited; Defendant: Joseph Njenga Wandui & David Omondi Boup T/A Petro Gap; Defendant: Abdul Wahid Maalim t/a Screen Republic Gaming; Defendant: Henry Ochel t/a Favournatts Cereals
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Land Case E183 of 2024
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Directions and Allow Filing of Replying Affidavit
- Outcome
- Application allowed; previous directions setting judgment date set aside; defendant granted leave to file replying affidavit; each party to bear own costs.
- Judges
- LN Mbugua
- Legal Topics
- Setting Aside Judgment, Right to Be Heard, Eviction Proceedings, Replying Affidavit, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Siko Woche Imala
Plaintiff
Impact Investments Limited
Defendant
Joseph Njenga Wandui & David Omondi Boup T/A Petro Gap
Defendant
Abdul Wahid Maalim t/a Screen Republic Gaming
Defendant
Henry Ochel t/a Favournatts Cereals
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Directions and Allow Filing of Replying Affidavit
Legal Issues
- 1 Whether the directions setting a judgment date should be set aside to allow the defendant to file a replying affidavit.
- 2 Whether the defendant should be granted an opportunity to be heard despite not filing a response within the stipulated timelines.
Ratio Decidendi
The court found that the matter was at an early stage, the defendant had not been shown to have obstructed justice, and there was an indication of a reasonable defence, including a related pending suit. In the interest of justice and in line with the right to be heard, the court exercised its discretion to set aside the earlier directions that set a judgment date. The defendant was granted leave to file and serve a replying affidavit within 14 days, and each party was ordered to bear their own costs. The court emphasized that justice is best served by allowing parties an opportunity to be heard, especially where the proceedings are at an infancy stage and no prejudice has been demonstrated.
Court Disposition
Application allowed; previous directions setting judgment date set aside; defendant granted leave to file replying affidavit; each party to bear own costs.
Orders
- The directions of 17.10.2024 setting a date for delivery of judgment are set aside.
- The defendant is directed to file and serve a Replying Affidavit within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
Imala v Impact Investments Limited & 3 others (Land Case E183 of 2024) [2024] KEELC 13929 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEELC 13929 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Land Case E183 of 2024
LN Mbugua, J
December 17, 2024
Between
Siko Woche Imala
Plaintiff
and
Impact Investments Limited
1st Defendant
Joseph Njenga Wandui & David Omondi Boup T/A Petro Gap
2nd Defendant
Abdul Wahid Maalim t/a Screen Republic Gaming
3rd Defendant
Henry Ochel t/a Favournatts Cereals
4th Defendant
Ruling
1. This suit was filed by way of an Originating Summons dated 2. 5.2024 in which the applicant sought orders interalia, for the 4 respondents to vacate the suit land L.R. No. 209/10669/5. On 17. 10. 2024, the applicant withdrew the case against 2nd - 4th Respondents. He also sought orders that his prayers no 1-3 in the Originating Summons be allowed as no response had been filed. Thus the court gave a judgment date for 14. 11. 2024.
2. The 1st respondent (now the only respondent) has filed an application dated 8. 11. 2024 seeking orders to set aside the directions given on 17. 10. 2024 to enable him to defend the suit by way of filing a replying affidavit. The application is supported by the supporting affidavit of Asha Hersi, who avers that their quest to defend the suit has been hampered by the fact that their director has been out of the country. They argue that they have a strong case as they have even filed a case at commercial court, being HCComm/E658 OF 2024 Impact Investment Limited v African Banking Corporation Ltd, Siko Woche Imara and 2 Others due for mention on 17. 2.2025. He contends that in the interest of justice, the application should be allowed.
3. On 14. 11. 2024, the rival parties were represented in court when the court gave directions for the respondent (plaintiff) to file his response by 19. 11. 2024, but no such response has been filed. I have also disregarded the submissions of the defendant filed out of the given timelines.
4. In the case of Kenya Broadcasting Corporation v National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA) [2015] eKLR, the court stated that;“Where a defendant raises a reasonable defence to the plaintiffs claim and the defendant has not been privy to obstruction of justice, the court should exercise its discretion in favour of the defendant, even where the judgment entered is regular”.
5. In the case at hand, the court has considered that the matter is at the infancy stage, having been filed in the course of year 2024. The defendant also states that the rival parties have another case at the high court, a fact which has not been rebutted. And finally, the defendant has challenged their eviction in the draft replying affidavit.
6. In the circumstances, I find that it is only fair and just that the defendant be given an opportunity to be heard, in tandem with the principle of the right to be heard. To this end, the application dated 8. 11. 2024 is allowed such that the directions of 17. 10. 2024 setting a date for delivery of judgment are hereby set aside. The defendant is directed to file and serve his Replying Affidavit within 14 days from the date of delivery of this ruling. Each party is directed to bear their own costs of the application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17th DAY OF DECEMBER 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Mugisha for PlaintiffKavekye for DefendantCourt Assistant: Vena