[2015] KEHC 1236 (KLR)
The court adopted the consent of both parties, allowing the defendants leave to file their defence and counter-claim upon payment of agreed thrown away costs. The court found that the consent resolved the application and that granting leave would facilitate the just determination of the dispute and avoid...
Source-derived case information.
- Citation
- [2015] KEHC 1236 (KLR)
- Parties
- Plaintiff: James Kimathi Riungi; Defendant: Patrick Muthuri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 107 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Leave to File Defence and Counter Claim
- Outcome
- Application allowed by consent; leave granted to file defence and counter-claim upon payment of costs.
- Judges
- FM Njoroge
- Legal Topics
- Leave to File Defence, Counter Claims, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimathi Riungi
Plaintiff
Patrick Muthuri
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to File Defence and Counter Claim
Legal Issues
- 1 Whether the defendants should be granted leave to file their defence and counter-claim out of time.
- 2 Whether the draft statement of defence and counter-claim should be deemed as filed and served upon payment of filing fees.
- 3 Whether the consent between the parties should be adopted as an order of the court.
Ratio Decidendi
The court adopted the consent of both parties, allowing the defendants leave to file their defence and counter-claim upon payment of agreed thrown away costs. The court found that the consent resolved the application and that granting leave would facilitate the just determination of the dispute and avoid multiplicity of proceedings. The consent was adopted as an order of the court, and costs were ordered to be in the cause.
Court Disposition
Application allowed by consent; leave granted to file defence and counter-claim upon payment of costs.
Orders
- The application dated 9.3.2015 is allowed by consent.
- The applicant to pay the respondents thrown away costs agreed at Kshs.6000 before filing the intended defence and counter-claim.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL CASE NO.107 OF 2008 (OS)
JAMES KIMATHI RIUNGI........................................................................... PLAINTIFF
VERSUS
PATRICK MUTHURI.........................................................................2ND DEFENDANT
R U L I N G
This application is dated 9th March, 2015. It seeks orders:
THATthis Honourable Court be pleased to grant the defendants leave to file their defence and counter-claim.
THATthe attached draft statement of Defence and counter-claim be deemed as filed and served in the circumstances SAVE to pay the necessary court filing fees.
Costs of this application be costs in the same.
The application is buttressed by the supporting affidavit of Patrick Muthuri, the 2nd defendant. It has the following grounds:
The defendants intend to raise a claim for damages namely profits, eviction order and permanent injunction against the plaintiff.
The said defence and counter-claim is necessary to determine the dispute with finality against the parties and to avoid a duplication of suits arising from the same subject matter.
On 6. 10. 2015, the parties presented to Court a consent which they urged the court to adopt as its order.
The consent is in the following terms:
“By consent of both parties, the application dated 9. 3.2015 be and is hereby allowed and the applicant to pay the respondents thrown away costs agreed at Kshs.6000/= before filing the intended defence andcounter-claim”
The consent is adopted as an order of this court.
Costs shall shall be in the cause.
Delivered in Open Court at Meru this 6th day of October, 2015 in the presence of:
Cc. Lilian/Daniel
Akwalu h/b Gikunda Anampiu for Plaintiff
Riungu for the Defendant
P. M. NJOROGE
JUDGE