[2018] KEHC 516 (KLR)
The court found that the 2nd Defendant was duly served with the necessary documents but failed to file a defence or provide any affidavit explaining the delay. The only documents on record from the 2nd Defendant were the grounds of opposition and a Memorandum of Appearance. The court held that submissions are not...
Source-derived case information.
- Citation
- [2018] KEHC 516 (KLR)
- Parties
- Plaintiff: John Gicheru Thuita; Plaintiff: Ceaser Muchiri; Plaintiff: Jackson Kariuki Kingori; Plaintiff: James Maina Mbuthia; Plaintiff: John Kariuki Kingori; Plaintiff: George Thuku Wambugu; Plaintiff: Paul Ndiritu Mwai; Defendant: Agriculture, Fisheries & Food Authority; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 230 of 2014
- Procedural Posture
- Civil Case / Ruling on Application for Judgment in Default of Defence
- Outcome
- Application allowed. Judgment entered against the 2nd Defendant with costs.
- Judges
- BT Jaden
- Legal Topics
- Default Judgment, Failure to File Defence, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gicheru Thuita
Plaintiff
Ceaser Muchiri
Plaintiff
Jackson Kariuki Kingori
Plaintiff
James Maina Mbuthia
Plaintiff
John Kariuki Kingori
Plaintiff
George Thuku Wambugu
Plaintiff
Paul Ndiritu Mwai
Plaintiff
Agriculture, Fisheries & Food Authority
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application for Judgment in Default of Defence
Legal Issues
- 1 Whether judgment should be entered against the 2nd Defendant for failure to file a defence.
- 2 Whether the 2nd Defendant has provided sufficient reason for the delay in filing a defence.
Ratio Decidendi
The court found that the 2nd Defendant was duly served with the necessary documents but failed to file a defence or provide any affidavit explaining the delay. The only documents on record from the 2nd Defendant were the grounds of opposition and a Memorandum of Appearance. The court held that submissions are not evidence and that no sufficient reason was given for the failure to file a defence. Consequently, the court exercised its discretion in favour of the Plaintiffs and allowed the application for judgment against the 2nd Defendant with costs.
Court Disposition
Application allowed. Judgment entered against the 2nd Defendant with costs.
Orders
- Judgment is entered for the Plaintiffs as against the 2nd Defendant as prayed for in the plaint.
- The 2nd Defendant shall bear the costs of the application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 230 OF 2014
JOHN GICHERU THUITA.............1ST PLAINTIFF/APPLICANT
CEASER MUCHIRI........................2ND PLAINTIFF/APPLICANT
JACKSON KARIUKI KINGORI..3RD PLAINTIFF/APPLICANT
JAMES MAINA MBUTHIA..........4TH PLAINTIFF/APPLICANT
JOHN KARIUKI KINGORI..........5TH PLAINTIFF/APPLICANT
GEORGE THUKU WAMBUGU...6TH PLAINTIFF/APPLICANT
PAUL NDIRITU MWAI.................7TH PLAINTIFF/APPLICANT
VERSUS
AGRICULTURE, FISHERIES
& FOOD AUTHORITY..........1ST DEFENDANT/RESPONDENT
ATTORNEY GENERAL.......2ND DEFENDANT/RESPONDENT
RULING
1. The application dated 30th May, 2017 seeks orders that judgment be entered for the Plaintiff as against the 2nd Defendant as prayed for in the plaint.
2. It is stated in the grounds and the affidavit in support of the application that the 2nd Defendant was served with Summons to Enter Appearance, Amended Plaint and Verifying Affidavit together with the accompanying documents on 20th March, 2015. That the 2nd Defendant has failed to Enter Appearance or file a Defence. That the 2nd Defendant has continued to receive documents pertaining to this case but continues neglecting filing its documents, thereby causing delay in the suit.
3. The 1st Defendant did not oppose the application.
4. The application is opposed by the 2nd Defendant. The 2nd Defendant filed the grounds of opposition dated 13th June, 2017 which states as follows:
1. That the failure to file a defence is not intentional on the part of the 2nd Defendant.
2. That the application is therefore frivolous, vexatious and an abuse of the court process.
5. I have considered the application, the response to the same and the submissions made by the respective counsels for the parties.
6. As at the date of the hearing of the application at hand, no defence or draft thereof was on the record. No replying affidavit was filed to explain the delay. The court has therefore not been told why there is no statement of defence on record. The 2nd Defendant’s written submissions seem to be giving the reasons for the delay. However, submissions are not evidence.
7. Although it is stated in the 2nd Defendant’s written submissions that the Memorandum of Appearance and the Statement of Defence were attached thereof, no such documents were attached. Indeed there are no such documents in the court file by the 2nd Defendant save for the grounds of opposition dated 13th June, 2017 and a Memorandum of Appearance.
8. In the case at hand, there are absolutely no reasons given why this court should exercise it’s discretion in favour of the 2nd Defendant. Consequently, I allow the application with costs.
Date, signed and delivered at Nairobi this 14th day of Nov., 2018
B. THURANIRA JADEN
JUDGE