[2016] KEHC 6231 (KLR)
The court found itself unable to determine whether the defence is frivolous, scandalous, vexatious, or an abuse of the court process because the defence document was missing from the court file. The absence of the defence could have resulted from administrative mishandling during the transfer of the file or within...
Source-derived case information.
- Citation
- [2016] KEHC 6231 (KLR)
- Parties
- Plaintiff: Leonard Njiru Njogu; Defendant: Obed Gachoki Difatha; Defendant: Simon Mwaniki Gachoki
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 201 of 2013
- Procedural Posture
- Land and Environment Case / Interlocutory Application; Awaiting Defence for Determination of Application to Strike Out Defence
- Outcome
- Application for striking out defence deferred; further mention scheduled pending availing of defence document.
- Judges
- BN Olao
- Legal Topics
- Striking Out Defence, Frivolous Pleadings, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Njiru Njogu
Plaintiff
Obed Gachoki Difatha
Defendant
Simon Mwaniki Gachoki
Defendant
Procedural Posture
Land and Environment Case / Interlocutory Application; Awaiting Defence for Determination of Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendants is frivolous, scandalous, vexatious, or an abuse of the court process.
- 2 Whether the court can determine the application to strike out the defence in the absence of the defence document.
Ratio Decidendi
The court found itself unable to determine whether the defence is frivolous, scandalous, vexatious, or an abuse of the court process because the defence document was missing from the court file. The absence of the defence could have resulted from administrative mishandling during the transfer of the file or within the registry. Without the defence, the court cannot make a substantive determination on the application to strike it out. The court therefore directed that the Deputy Registrar write to the defendants/respondents to provide a copy of the defence, and also allowed the plaintiff/applicant's counsel to avail a copy if possible. The matter was set for mention to fix a ruling date...
Court Disposition
Application for striking out defence deferred; further mention scheduled pending availing of defence document.
Orders
- Deputy Registrar to write to defendants/respondents to avail a copy of the defence.
- Counsel for the plaintiff/applicant may also provide a copy of the defence to the court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC CASE NO. 201 OF 2013
LEONARD NJIRU NJOGU…………....………..…..............…PLAINTIFF
VERSUS
OBED GACHOKI DIFATHA……………….....….....…..1ST DEFENDANT
SIMON MWANIKI GACHOKI……………......................2ND DEFENDANT
ORDER
This suit was originally filed at the High Court in Embu on 7th October 2011 before being transferred to this Court on 7th November 2012.
When it was mentioned before me on 26th October 2015, Mr. Kagio advocate for the plaintiff/applicant informed me that what was pending was the application dated 16th March 2012 and I directed that the defendants be served for hearing on 1st December 2015. The application itself seeks the dismissal of the defence for disclosing no proper defence in law and for being frivolous, scandalous and vexatious and an abuse of the Court process.
On 1st December 2015 Mr. Kagio advocate for the plaintiff/applicant informed me that he had served both defendants/respondents with the said application and urged me to rely on the plaintiff/applicant’s supporting affidavit and further affidavit dated 3rd November 2015. I therefore fixed the ruling date for that application for 16th March 2016.
However, upon perusal of the Court file, I have found that there is no defence in the file. It may have fallen out of the file either in our registry or during the transfer of this file from Embu. In the absence of the defence, I am un-able to decide whether it is indeed frivolous, scandalous, vexatious or an abuse of the Court process as alleged.
I therefore direct that the Deputy Registrar writes to defendants/respondents to avail a copy of the defence for my further necessary action. Counsel for the plaintiff/applicant could also make a copy available to the Court.
This case will be mentioned on 4th April 2016 for further orders as to ruling date once the defence is availed.
B.N. OLAO
JUDGE
16TH MARCH, 2016
Order read to Mr. Kagio Advocate for the Plaintiff/Applicant in open Court this 16th day of March 2016.
Further mention on 4th April 2016.
Mention notice to issue.
B.N. OLAO
JUDGE
16TH MARCH, 2016