[2018] KEELC 1955 (KLR)
The court found that the 1st Defendant failed to provide a satisfactory or plausible explanation for its failure to file a defence after being duly served with the summons and amended plaint. The court examined the draft defence and determined that it merely denied the Plaintiff's claims without raising any...
Source-derived case information.
- Citation
- [2018] KEELC 1955 (KLR)
- Parties
- Plaintiff: Josephat Mailu Ndolo; Defendant: City Council of Nairobi; Defendant: Mary Asiyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1295 of 2013
- Procedural Posture
- Ruling / Application to Set Aside Judgment
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Setting Aside Judgment, Default Judgment, Allocation of Land, Fraudulent Repossession
- 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
Josephat Mailu Ndolo
Plaintiff
City Council of Nairobi
Defendant
Mary Asiyo
Defendant
Procedural Posture
Ruling / Application to Set Aside Judgment
Legal Issues
- 1 Whether the 1st Defendant has provided sufficient grounds for the court to set aside or review the judgment delivered on 22/5/2015.
- 2 Whether the 1st Defendant's failure to file a defence was excusable and justified the exercise of the court's discretion.
- 3 Whether the draft defence raises triable issues warranting the reopening of the suit.
Ratio Decidendi
The court found that the 1st Defendant failed to provide a satisfactory or plausible explanation for its failure to file a defence after being duly served with the summons and amended plaint. The court examined the draft defence and determined that it merely denied the Plaintiff's claims without raising any substantive triable issues. The court held that the discretion to set aside a judgment should be exercised cautiously and only where the applicant demonstrates sufficient cause and a meritorious defence. In this case, the 1st Defendant did not meet the threshold for the exercise of the court's discretion. Consequently, the application to set aside the judgment was dismissed with costs...
Court Disposition
application dismissed
Orders
- The application dated 10/2/2017 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 1295 OF 2013
JOSEPHAT MAILU NDOLO.........................................PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI..........................1ST DEFENDANT
MARY ASIYO......................................................2ND DEFENDANT
RULING
The 1st Defendant seeks to have the judgement delivered on 22/5/2015 reviewed or set aside through the application dated 10/2/2017 and to be granted leave to defend the suit. The 1st Defendant claims that that judgement was entered against it through no mistake or negligence on its part. It admits being served with summons to enter appearance but claims that it failed to enter appearance and file defence because its officer who was served misplaced the pleadings. The 1st Defendant’s Director of Legal Affairs averred in the supporting affidavit that on perusing the court file, they realised that judgement had been entered on 22/5/2015. He did not give the date the 1st Defendant learnt that judgement had been entered against it.
The Plaintiff opposed the application and averred in the Replying Affidavit that the reasons the 1st Defendant gave for failing to defend the suit after being served were flimsy. Not only was the 1st Defendant served with the summons to enter appearance together with the plaint on 28/11/2013, but it was also served with the Amended Plaint on 4/4/2014.
Parties filed submissions which the court has considered. The 1st Defendant reiterated that the failure to file its defence within time was not intentional and that it is in the best interest of justice to have judgement set aside.
The Plaintiff urged that in exercising its discretion on an application to set aside judgement, the court must do so with caution since if the court sets aside the judgement, it will set back the Plaintiff in prosecuting his case and the applicant must give a plausible explanation as to why he did not file defence within the prescribed period.
The court has looked at the draft defence attached to the application to demonstrate that the 1st Defendant has a good defence to the Plaintiff’s claim that raises triable issues. Unfortunately, it merely denies the Plaintiff’s claim. The Plaintiff claims in his Amended Plaint that the 1st Defendant allotted him Plot No. D5-436 Kayole on terms and conditions that he duly complied with but that the 1st Defendant later fraudulently repossessed the plot and reallocated it to the 2nd Defendant.
The court is not satisfied that it ought to exercise its discretion in favour of the 1st Defendant and grant the orders sought. The application dated 10/2/2017 is dismissed with costs to the Plaintiff.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Mapesa holding brief for Ms. Kilonzo for the Plaintiff
No appearance for the Defendants
Mr. V. Owuor- Court