[2017] KEELC 2295 (KLR)
The court found that the defendant/applicant failed to prosecute the application to set aside the orders striking out his defence. The defendant did not attend court on the scheduled date nor did he meaningfully respond to the plaintiff's submissions. The court held that there was no sufficient cause shown to...
Source-derived case information.
- Citation
- [2017] KEELC 2295 (KLR)
- Parties
- Plaintiff: Koome Samuel Mwiraria; Defendant: Nickson Mugambi Rucha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 57 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Orders and Reinstate Defence
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Orders, Reinstatement of Defence, Striking Out of Pleadings, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Koome Samuel Mwiraria
Plaintiff
Nickson Mugambi Rucha
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Orders and Reinstate Defence
Legal Issues
- 1 Whether the court should review, vary, or set aside the orders striking out the defendant's defence.
- 2 Whether the defendant's defence should be reinstated to the record.
- 3 Whether leave should be granted to file a defence out of time.
Ratio Decidendi
The court found that the defendant/applicant failed to prosecute the application to set aside the orders striking out his defence. The defendant did not attend court on the scheduled date nor did he meaningfully respond to the plaintiff's submissions. The court held that there was no sufficient cause shown to warrant the review or setting aside of the orders previously made. The application was therefore dismissed, and costs were awarded to the plaintiff/respondent. The court emphasized the importance of diligent prosecution of applications and the absence of any compelling reason to disturb its earlier orders.
Court Disposition
application dismissed
Orders
- The application dated 24th April, 2017 is dismissed.
- Costs are awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 57 OF 2017
FORMERLY MERU ELC CASE NO. 220 OF 2016
KOOME SAMUEL MWIRARIA……..……………………....….PLAINTIFF
VERSUS
NICKSON MUGAMBI RUCHA………………………………… DEFENDANT
RULING
1. This application is dated 24th April, 2017 and seeks orders:
1. THAT this application be certified as urgent and the same be heard exparte in the first instance.
2. THAT this Honourable court be pleased to review, vary, set aside the orders of 23rd March, 2017 striking out Defendant’s/applicant’s defence dated 4th January, 2017.
3. THAT the Defendant’s/applicant’s defence dated 4th January, 2017 be reinstated to form part of the record.
IN THE ALTERNATIVE
4. THAT this Honourable court be pleased to grant the applicant leave to file a defence out of time.
5. THAT costs of this suit be provided for.
2. The application is supported by the affidavit of DAVID JOHN MBAYA sworn on 24th April, 2017 and has the following grounds:
a) THAT this honourable court struck out the defendants defence dated 4. 1.2017on the 23rd March when this matter was coming up for ruling.
b) THAT the plaintiff applied to have the said defence struck out.
c) That the plaintiff did not show what prejudice he would suffer if his application dated 28th February, 2017 is declined.
d) That having the said defence on record will not prejudice the plaintiff’s case but it will help reach justice to all parties.
e) THAT the Defendant/Applicant is keen on prosecuting the said matter.
f) THAT if this application is not allowed the Applicant stands to suffer tremendous loss and damage.
g) THAT it is only just, fair and equitable that this application be allowed.
3. On 20. 6.2017, the applicant was granted 14 days to further respond and to file written submissions. This was done at the request of advocate Murango Mwenda who was holding brief for advocate D.J. Mbaya, the defendant’s advocate.
4. Parties were ordered to take directions on 10. 7.2017 and when a date for the court’s ruling would be fixed.
5. On 10. 7.2017 the plaintiff and his advocate were in court but the defendant and his advocate were not in court. Mr Gitonga, the plaintiff’s advocate asked the court to dismiss the application on account of not having been prosecuted by the defendant. He invited the court to consider the issues he had raised in his written submissions.
6. I have perused the submissions filed by the plaintiff’s advocate. They support the dismissal of the defendant’s suit made vide this court’s ruling delivered on 23. 3.2017. The defendant, who is the applicant, has not in any meaningful way controverted the assertions proffered by the plaintiff.
7. In the circumstances, this application is dismissed.
8. Costs are awarded to the plaintiff/respondent.
9. It is so ordered.
Delivered in open court at Chuka this 11th day of July, 2017 in the presence of:
CA: Ndegwa
Njeru Ithiga h/b D.J. Mbaya for Defendant
Frank Gitonga for the plaintiff
P.M. NJOROGE
JUDGE