[2019] KEELC 640 (KLR)
The court held that interlocutory judgment cannot be entered in land matters where the claim is not for a liquidated demand or pecuniary damages. The rules of procedure do not provide for entry of interlocutory judgment in such cases. The plaintiff is therefore required to formally prove his case in accordance with...
Source-derived case information.
- Citation
- [2019] KEELC 640 (KLR)
- Parties
- Plaintiff: Kennon Mwiti Mbae (suing as the legal representative of the estate of Silas Judah Mbae Deceased); Defendant: Zaverio Kiamba Mwamba; Defendant: The Land Registrar, Imenti North District; Defendant: The Surveyor, Imenti North District; Defendant: The Attorney General; Defendant: Z. Nyamu Arimi; Appellant: Festus Riungu Rimberia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 42 of 2018
- Procedural Posture
- Land Case / Ruling on Request for Interlocutory Judgment
- Outcome
- Request for interlocutory judgment declined; plaintiff to formally prove case.
- Legal Topics
- Interlocutory Judgment, Default of Appearance, Burden of Proof, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennon Mwiti Mbae (suing as the legal representative of the estate of Silas Judah Mbae Deceased)
Plaintiff
Zaverio Kiamba Mwamba
Defendant
The Land Registrar, Imenti North District
Defendant
The Surveyor, Imenti North District
Defendant
The Attorney General
Defendant
Z. Nyamu Arimi
Defendant
Festus Riungu Rimberia
Appellant
Procedural Posture
Land Case / Ruling on Request for Interlocutory Judgment
Legal Issues
- 1 Whether interlocutory judgment can be entered in a land matter where the defendant fails to appear.
- 2 Whether the plaintiff is entitled to judgment in default of appearance by the 1st defendant.
- 3 Whether the plaintiff must formally prove his case in land disputes.
Ratio Decidendi
The court held that interlocutory judgment cannot be entered in land matters where the claim is not for a liquidated demand or pecuniary damages. The rules of procedure do not provide for entry of interlocutory judgment in such cases. The plaintiff is therefore required to formally prove his case in accordance with section 107 of the Evidence Act, regardless of the defendant's failure to appear. The court relied on established case law, including Beatrice Wanjiru Kamuri vs John Kibira Muiruri (2016) eKLR and Peter Karanja Kamani vs Isaac Mwangi Kimani (2018) eKLR, to reinforce the principle that land claims must be proved at a formal hearing even in the absence of a defence.
Court Disposition
Request for interlocutory judgment declined; plaintiff to formally prove case.
Orders
- The request for entry of interlocutory judgment against the 1st defendant is declined.
- The plaintiff is required to formally prove his case in accordance with section 107 of the Evidence Act.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 42 OF 2018
KENNON MWITI MBAE (suing as the legal representative of the estate of
SILAS JUDAH MBAE DECEASED)...............PLAINTIFF/RESPONDENT
VERSUS
ZAVERIO KIAMBA MWAMBA.......................................1ST DEFENDANT
THE LAND REGISTRAR, IMENTI
NORTH DISTRICT............................................................2ND DEFENDANT
THE SURVEYOR, IMENTI NORTH DISTRICT..........3RD DEFENDANT
THE ATTORNEY GENERAL..........................................4TH DEFENDANT
Z.NYAMU ARIMI..............................................................5TH DEFENDANT
FESTUS RIUNGU RIMBERIA..........INTENDED INTERESTED PARTY
RULING
1. On 18. 7.2019, Mr. Thangicia, counsel for the plaintiffs urged the court to give directions regarding the request for judgment made against 1st defendant. The said request was filed in this court on 18. 7.2019. A perusal of the file indicates that service of the suit papers was effected upon 1st defendant way back on 2. 11. 2018 as per the affidavit of service filed in court on 8. 11. 2018.
2. Order 10 rule 6 of the Civil Procedure Rules provides that:
“Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be”.
While order 10 rule 4 provides that;
“Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand”.
3. The plaintiff herein has not made a claim for a liquidated demand, nor is the claim one for pecuniary damages. It is trite that the rules of procedure do not provide for entry of interlocutory judgment in land matters.
4. In the case of Beatrice Wanjiru Kamuri vs John Kibira Muiruri (2016) eKLR, Munyao J, stated that:
“It will be seen from the above that the claim in our case, being a claim for land does not qualify for entry of interlocutory judgment, and as I have mentioned earlier, that was the reason why no interlocutory judgment was entered for the plaintiff when she applied for the same”.
Also seePeter Karanja Kamani vs Isaac Mwangi Kimani (2018) ekLR.
6. Guided by the above holding, I decline to endorse the entry of judgment in default of appearance by 1st defendant. The plaintiff is required to formally prove his case in terms of the provisions of section 107 of the Evidence Act.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 27TH NOVEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Mutuma holding brief for Thangicia for plaintiffs Kiety for AG
Kiplagat for 2nd interested party
M/s Murithi holding brief for Kimathi K for 1st interested party
HON. LUCY. N. MBUGUA
ELC JUDGE