[2017] KEELC 3719 (KLR)
The court found that the defendant's explanation for the delay in filing a defence—waiting for proceedings and judgment from a related case—was plausible. The draft defence raised triable issues, particularly the assertion that the demolition was carried out pursuant to a lawful court decree. The court held that the...
Source-derived case information.
- Citation
- [2017] KEELC 3719 (KLR)
- Parties
- Plaintiff: Joyce Mutethya Kimanthi; Plaintiff: Irene Katumbu Kimanthi; Defendant: Isaac Kalua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case ? of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Default Judgment
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Setting Aside Default Judgment, Leave to Defend, Demolition of Property, Compensation for Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Mutethya Kimanthi
Plaintiff
Irene Katumbu Kimanthi
Plaintiff
Isaac Kalua
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the ex parte default judgment against the defendant should be set aside.
- 2 Whether the defendant should be granted unconditional leave to defend the suit.
- 3 Whether the defendant's delay in filing a defence was justified.
Ratio Decidendi
The court found that the defendant's explanation for the delay in filing a defence—waiting for proceedings and judgment from a related case—was plausible. The draft defence raised triable issues, particularly the assertion that the demolition was carried out pursuant to a lawful court decree. The court held that the interests of justice would be served by allowing the matter to be heard on its merits, and that the plaintiffs would not suffer prejudice if the default judgment was set aside. Accordingly, the application to set aside the ex parte judgment and grant unconditional leave to defend was allowed.
Court Disposition
application allowed
Orders
- The application dated 9th November, 2016 is allowed as prayed.
- The ex parte default judgment entered against the defendant and all subsequent orders are set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 72 OF 2016
JOYCE MUTETHYA KIMANTHI...........................1ST PLAINTIFF
IRENE KATUMBU KIMANTHI.............................2ND PLAINTIFF
VERSUS
ISAAC KALUA ........................................................DEFENDANT
RULING
1. In the Notice of Motion dated 9th November, 2016, the Defendant is seeking for the following reliefs:
a. That this Honourable Court be pleased to set aside the exparte default Judgment entered against the Defendant/Applicant and all subsequent orders thereto and allow the suit to be heard on merits.
b. That this Honourable Court be pleased to grant the Defendant/Applicant leave to defend this suit unconditionally.
c. That costs of this Application herein be in the cause.
2. The Application is based on the grounds that the Defendant has a good Defence that raises triable issues; that the Defendant will suffer prejudice if the Judgment is not set aside and that the Plaintiffs will not suffer any prejudice if the orders being sought are granted.
3. In his Affidavit, the Defendant’s advocate deponed that before filing a Defence, it was of essence for him to obtain copies of the proceedings and Judgment in Kitui CMCC No. 298 of 2005; that the proceedings were availed to him on 28th September, 2016 and that that is why he delayed in filing a Defence.
4. In response, the 2nd Plaintiff deponed that it is neither a legal requirement nor mandatory for the Applicant to avail court proceedings or any evidence prior to filing a Defence; that the draft Defence does not raise any triable issue and that the Application should be dismissed.
5. In his submissions, the Defendant’s advocate submitted that it was crucial for the Defendant to obtain the copies of the proceedings and Judgment in Kitui CMCC No. 298 of 2005 before filing a Defence; that the Defence has high chances of success and that the Plaintiffs have not shown the prejudice they will suffer if the Application is allowed.
6. The Plaintiffs’ advocate submitted that subject land had a caution by the time the Defendant was carrying out demolition of the Plaintiffs’ property; that the Defendant does not have title to the land and that the Defendant intends to delay the finalization of this matter.
7. Both counsels relied on authorities which I have considered.
8. In the Plaint dated 2nd August, 2016, the Plaintiffs averred that the Defendant unlawfully demolished a building valued at Kshs. 342,500 which had been constructed on parcel of land known as Kyangwithya/Tungutu/1153. The Plaintiffs claimed for a sum of Kshs. 342,500 being compensation for the value of the demolished building.
9. Upon being served with the Summons and the Plaint, the Defendant, through his advocate entered appearance on 17th August, 2016. The Plaintiff then requested for Judgment which was entered on 28th September, 2016.
10. In the draft Defence, the Defendant has pleaded that the demolition of the Plaintiffs’ structure was done in execution of a lawful decree that was issued by the court in Kitui CMCC No. 58 of 2015.
11. Considering that the Defendant’s Defence is predicted on Kitui CMCC No. 58 of 2015 and in view of the evidence before me showing that the Defence applied to be supplied with proceedings and Judgment in Kitui CMCC No. 58 of 2015 on 28th July, 2016, I find that the reasons given for not filing the Defence within the requisite period to be plausible.
12. For those reasons, I allow the Application dated 9th November, 2016 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.
O.A. ANGOTE
JUDGE