[2011] KEHC 2638 (KLR)
The court found that the interlocutory judgment entered against the 1st defendant was irregular because a defence had already been filed by the Attorney General prior to the entry of judgment. Although the application to set aside the judgment was not brought by the Attorney General, the applicant, Kahawa Sukari...
Source-derived case information.
- Citation
- [2011] KEHC 2638 (KLR)
- Parties
- Plaintiff: James Joram Nyagah; Plaintiff: Abija James Nyaga; Defendant: The Hon. The Attorney General; Defendant: The Land Registrar Thika; Defendant: Kahawa Sukari Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 145 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment and for Leave to File Defence
- Outcome
- Application allowed; interlocutory judgment set aside; leave granted to file defence and counterclaim.
- Judges
- GG Okwengu
- Legal Topics
- Joinder of Parties, Setting Aside Judgment, Interlocutory Judgment, Defence and Counterclaim
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Joram Nyagah
Plaintiff
Abija James Nyaga
Plaintiff
The Hon. The Attorney General
Defendant
The Land Registrar Thika
Defendant
Kahawa Sukari Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment and for Leave to File Defence
Legal Issues
- 1 Whether Kahawa Sukari Ltd should be joined as the 3rd defendant in the suit.
- 2 Whether the interlocutory judgment entered against the 1st defendant should be set aside.
- 3 Whether the applicant should be granted leave to file a defence and counterclaim.
Ratio Decidendi
The court found that the interlocutory judgment entered against the 1st defendant was irregular because a defence had already been filed by the Attorney General prior to the entry of judgment. Although the application to set aside the judgment was not brought by the Attorney General, the applicant, Kahawa Sukari Ltd, demonstrated that its interests in the suit property would be compromised if not allowed to participate and defend the suit. The court held that it was fair and just to set aside the interlocutory judgment and grant the applicant leave to file its defence and counterclaim, thereby ensuring that all necessary parties have an opportunity to be heard and that justice is served.
Court Disposition
Application allowed; interlocutory judgment set aside; leave granted to file defence and counterclaim.
Orders
- Prayers (3) and (4) of the application dated 13th April, 2010 are granted.
- The interlocutory judgment entered against the 1st defendant on 26th November, 2009 is set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.145 OF 2009
JAMES JORAM NYAGAH……………………...........................…..1ST PLAINTIFF
ABIJA JAMES NYAGA………….........................……………..…..2ND PLAINTIFF
VERSUS
THE HON. THE ATTORNEY GENERAL…....................................…..1ST DEFENDANT
THE LAND REGISTRAR THIKA…...................................…………...2ND DEFENDANT
KAHAWA SUKARI LTD……………................................……...…...3RD DEFENDANT
R U L I N G
1. By a chamber summons dated 13th April, 2010, Kahawa Sukari Ltd came to this court seeking several orders as follows:
(i)That this application be heard ex-parte in the first instance and be certified as urgent.
(ii)That Kahawa Sukari Limited be added as the 3rd defendant in this suit.
(iii)That the interlocutory judgment entered against the defendant (sic) on 26th November, 2009 be set aside upon such terms as are just.
(iv)That the applicant be granted leave to file a defence and, if need be, a counterclaim.
(v)That the applicant be at liberty to pray for such further or other orders as this honourable court may deem fit and just to grant.
(vi)That the costs of this application be provided for.
2. The application was certified urgent and fixed for interpartehearing on 4th May, 2010. On 29th April, 2010 the 1st defendant filed a replying affidavit. However when the matter came up on 4th May, 2010, neither the plaintiffs nor the defendants attended court. The court granted the prayer joining Kahawa Sukari Ltd as a 3rd defendant to this suit, and ordered that the plaintiffs and 1st and 2nd defendants be served again with a hearing notice for hearing of prayers (3) & (4) of the chamber summons dated 13th April, 2010. It was not until 5th April, 2011 when the applicant’s counsel and the plaintiffs’ counsel appeared before me and argued the application dated 13th April, 2010 in regard to prayers (3) & (4).
3. Surprisingly, there was no representation for 1st defendant, even though the prayers specifically sought to have the ex-parte judgment entered against 1st defendant set aside. Nonetheless, the applicant has urged the court to set aside the interlocutory judgment entered against 1st defendant pointing out that the judgment entered against the 1st defendant was irregular. The applicant has further endeavoured to demonstrate that it is the beneficial owner of the suit property, and that being a necessary party it should be granted leave to file a defence to the plaintiff’s claim.
4. For the plaintiffs it was argued that the interlocutory judgment having been entered against the Attorney General, it is only the Attorney General who can move the court to set aside the judgment. It was further argued that the application was misconceived.
5. I have given due consideration to this application. The issue of the applicant being joined as a party to this suit was settled on 4th May, 2010 when the court granted prayer 2 of the application and added the applicant as a 3rd defendant in the suit. That order has not been set aside and the court cannot revisit the issue.
6. As regards prayer (3) for the setting aside of the interlocutory judgment which was entered against the 1st defendant on 26th November, 2009, my perusal of the court record reveals that there is an error apparent on the face of the record. This is because the judgment entered on 26th November, 2009 was entered when there was a defence on record dated 26th June, 2009 filed by the Attorney General on 30th June 2009. Therefore, interlocutory judgment ought not to have been entered. It is true that the application for setting aside the interlocutory judgment ought to have been made by the Attorney General. Nonetheless, the applicant has demonstrated that the orders sought by the plaintiffs will completely compromise the applicant’s claim to the suit property unless the applicant is given an opportunity to defend the plaintiff’s suit.
7. For the above reasons, I find it fair and just that prayers (3) & (4) of the application dated 13th April, 2010 be granted and that the applicant be given 15 days within which to file its defence and counterclaim to the plaintiffs’ suit. Orders accordingly.
Dated and delivered this 27th day of May, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
P.N. Mugu for the plaintiff
Ndengeri H/B for Kipkogei for the Attorney General
B. Kosgei - Court clerk