[2017] KEELC 3130 (KLR)
The court found that the defendant failed to serve the defence within the mandatory 14-day period after entering appearance, as required by Order 7 Rule 1 of the Civil Procedure Rules. The defence was only served almost three months after appearance and two months after filing, which was a clear breach of the rules....
Source-derived case information.
- Citation
- [2017] KEELC 3130 (KLR)
- Parties
- Plaintiff: Koome Samuel Mwiraria; Defendant: Nickson Mugambi Ruche
- 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 Strike Out Defence
- Outcome
- application allowed; defence struck out
- Judges
- FM Njoroge
- Legal Topics
- Striking Out of Defence, Service of Pleadings, Non Compliance With Civil Procedure Rules, Timelines for Filing and Service
- 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
Koome Samuel Mwiraria
Plaintiff
Nickson Mugambi Ruche
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defendant's defence should be struck out for failure to serve within the prescribed time period.
- 2 Whether the defence complied with the mandatory requirements of Order 7 Rule 5 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant failed to serve the defence within the mandatory 14-day period after entering appearance, as required by Order 7 Rule 1 of the Civil Procedure Rules. The defence was only served almost three months after appearance and two months after filing, which was a clear breach of the rules. Additionally, the defence was not accompanied by the required list of witnesses, witness statements, or documents as stipulated under Order 7 Rule 5. The court determined that these procedural lapses were not mere technicalities but went to the root of fair and expeditious trial. The defendant's lack of cooperation and failure to respond substantively to the application...
Court Disposition
application allowed; defence struck out
Orders
- The defendant's defence dated 4th January, 2017 is struck out.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
32 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 RUCHE….…..DEFENDANT
RULING
1. This ruling concerns an application filed by the plaintiff seeking orders:
1. That this honourable court be pleased to strike out the defendant’s defence dated 4th January, 2017.
2. That costs of this application be provided for.
2. The application is supported by the affidavit of KOOME SAMUEL MWIRARIA, the plaintiff and has the following grounds:
a. That the defendant on 30th November, 2016 received copies of Certificate of Urgency, Notice of Motion, Supporting Affidavit, Plaint and Summons to Enter Appearance all dated 9th November, 2016.
b. That the defendant on 13th December, 2016 filed his Memorandum of Appearance and indeed did appear in court on the said 13th December, 2016.
c. That the defendant filed his statement of defence on 4th January, 2017 but failed, neglected and/or ignored the service of the plaintiff’s counsel with the said documents.
d. That the mandatory provisions of Order 7 Rule 1 of the Civil Procedure Rules demand that defendant (sic) shall file and serve a defence within 14 days after he has entered appearance and an affidavit of service, proving such service of the defence upon the plaintiff, is required.
e. That the defendant only served their (sic) defence upon plaintiff’s counsel on 28th February, 2017, almost three months after entering appearance and two months after filing the same, and the said defence was received under protest.
f. That the defence served upon the plaintiff does not comply with the mandatory provisions of Order 7 Rule 5 of the Civil Procedure Rule as it is not accompanied by a list of witnesses to be called at trial, nor is it accompanied by written statements signed by the witnesses nor copies of documents to be relied on at trial.
g. That all the aforementioned actions by the defendants (sic) clearly indicate that either he does not seriously wish to defend his suit or is intent on delaying the prosecution of this suit.
h. That if permitted the defendant will seriously prejudice the speedy prosecution of this suit and defeat the ends of justice to the detriment of the plaintiff.
3. On 13. 3.2017, Mr Frank Gitonga, the plaintiff’s advocate told the court that the application was served upon the defendant on 2. 3.2017. He told the court that the defence counsel had more than 10 days to file his response. He urged the court to allow the application.
4. Miss Baikiata, holding brief for D.J. Mbaya, for the defendant, told the court that the defendant was not cooperative and this explains why he had not filed the apposite response. He told the court that Mr. Mbaya sought 30 days to file his response.
5. I have considered the issues raised in the application and the submissions proffered by the parties.
6. I find that the plaintiff’s application merits being allowed.
7. This application is allowed.
8. Costs are awarded to the plaintiff.
9. It is so ordered.
Delivered in open court at Chuka this 23rd day of March, 2017 in the presence of:
CA: Ndegwa
Frank Gitonga for plaintiff/Applicant
P.M. NJOROGE
JUDGE