[2019] KEELC 4866 (KLR)
The court found that the 2nd defendant was properly served with the plaint and summons, as evidenced by the affidavit of service and the record of appearances by his advocates. The application to strike out the suit for non-service was therefore unfounded. However, in the interest of substantive justice and given...
Source-derived case information.
- Citation
- [2019] KEELC 4866 (KLR)
- Parties
- Plaintiff: Kenya Anti-Corruption Commission; Defendant: Wilson Gacanja; Defendant: William Kipserem Busienei; Defendant: Industrial & Commercial Development Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 46 of 2010
- Procedural Posture
- Land Case / Ruling on Application to Strike Out Suit or for Leave to File Defence Out of Time
- Outcome
- Application to strike out suit dismissed; leave granted to 2nd defendant to file defence out of time upon payment of costs.
- Judges
- FM Njoroge
- Legal Topics
- Service of Summons, Late Filing of Defence, Striking Out Suit, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Anti-Corruption Commission
Plaintiff
Wilson Gacanja
Defendant
William Kipserem Busienei
Defendant
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Land Case / Ruling on Application to Strike Out Suit or for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the 2nd defendant was properly served with summons and plaint.
- 2 Whether the suit should be struck out for non-service.
- 3 Whether the 2nd defendant should be granted leave to file a defence out of time.
Ratio Decidendi
The court found that the 2nd defendant was properly served with the plaint and summons, as evidenced by the affidavit of service and the record of appearances by his advocates. The application to strike out the suit for non-service was therefore unfounded. However, in the interest of substantive justice and given that the hearing had only just commenced, the court exercised its discretion to allow the 2nd defendant to file his defence out of time. This leave was granted on the condition that the 2nd defendant pays punitive costs of Kshs. 30,000 to the plaintiff within 14 days, failing which the leave would be vacated. The court emphasized the need to balance procedural compliance with the...
Court Disposition
Application to strike out suit dismissed; leave granted to 2nd defendant to file defence out of time upon payment of costs.
Orders
- The 2nd defendant shall file his defence and comply fully with Order 7 Rule 5 of the Civil Procedure Rules.
- Timelines for compliance shall be as contained in Order 7.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 46 OF 2010
KENYA ANTI-CORRUPTION COMMISSION...............PLAINTIFF
VERSUS
WILSON GACANJA..................................................1ST DEFENDANT
WILLIAM KIPSEREM BUSIENEI........................2ND DEFENDANT
INDUSTRIAL & COMMERCIAL
DEVELOPMENT CORPORATION.......................3RD DEFENDANT
R U L I N G
1. This is a ruling on the application dated 16/7/2018 and filed in court on 17/7/2018. That application has been brought by the 2nd defendant. It prays for order that this suit be struck out and in the alternative the applicant be granted leave to file a defence out of time. The 2nd defendant also prays that the costs of this application be in the cause.
2. The plaintiff filed a replying affidavit sworn by one Wilson Mutiga, an Investigator with the Ethics and Anti-Corruption Commission on 9/8/2018. He avers that the 2nd defendant was served with summons to enter appearance on 2/7/2010; that an affidavit of service was filed in that regard on 14/7/2010; that a further copy of summons was served upon the 2nd defendant’s advocates on 21/5/2010. ; that pursuant to that summons the 2nd defendant entered appearance through the firm of Lel & Bungei; that later the 2nd defendant appointed the firm of Bungei & Murgor; that on 8th March 2017 Mr. Murgor appeared in court and applied for an adjournment on the ground that he was freshly appointed; that on 22/1/2018 the 2nd defendant appointed another advocate, a Mr. Mwara to come on the record on his behalf and the latter advocate also sought an adjournment on the same ground as his predecessor Mr. Murgor; that now the 2nd defendant has appointed the firm of R.E Nyamu & Co Advocates to represent him. It is alleged that the foregoing is evidence that the 2nd defendant was served but he has been employing delaying tactics by changing advocates on or on the eve of the hearing date.
3. I have examined the record and confirmed that the original of the affidavit of service annexed to the replying affidavit dated 9/8/2018 is in the record.
4. There is no supplementary affidavit filed by the applicant to controvert the contents of the replying affidavit. On the basis of the contents of the record, I find that the 2nd defendant was properly served with plaint and summons.
5. I find that the application for orders striking out the suit on the basis of non-service is not well founded.
6. The provisions of Order 7 Rule 1 are that a defendant who is served with summons should file his defence within 14 days after entry of appearance in the suit. He should serve the defence within 14 days of filing and file an affidavit of service. In my view and based on the analysis of the documents on the record there is no good reason why the defendant, who was duly served, failed to file and serve his defence on the other parties.
7. However this is a court of justice. Though the hearing of this suit has commenced, only one witness has testified.
8. Although I find the 2nd defendant’s conduct to be improper, I am of the view that the substantive justice would be done to all the parties if all the parties who wish to file their documents were allowed to do so, especially now that the hearing of the suit has not progressed to a great degree.
9. However this court must condemn the 2nd defendant to punitive costs if it is to allow him to file a defence despite his egregious conduct.
10. I therefore order that the 2nd defendant shall file his defence and comply fully with Order 7 Rule 5 of the Civil Procedure Rules.
11. The timelines for compliance with the said order shall be as contained in Order 7.
12. The 2nd defendant shall bear the costs of this application set at Kshs.30,000/= to the plaintiff within 14 days, failure to which the order granting him leave shall stand vacated.
It is so ordered.
Dated, signed and delivered at Kitale on this 29th day of January, 2019.
MWANGI NJOROGE
JUDGE
29/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Mokua for the plaintiff
N/A for the respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
29/01/2019