[2017] KEHC 6419 (KLR)
The court found that the explanation provided by the defendant's advocate—that the defence was not filed due to inadvertence—was not, on its own, sufficient to set aside the judgment. However, upon reviewing the defence, the court noted that the defendant raised a substantive issue: the suit land allegedly does not...
Source-derived case information.
- Citation
- [2017] KEHC 6419 (KLR)
- Parties
- Plaintiff: Mathew Munyole Wafula; Defendant: Japhether Wamalwa Kilui
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 51 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed
- Judges
- SN Mukunya
- Legal Topics
- Setting Aside Judgment, Default Judgment, Late Filing of Defence, Existence of Land Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Munyole Wafula
Plaintiff
Japhether Wamalwa Kilui
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the defendant should be set aside.
- 2 Whether the defence filed out of time should be deemed as duly filed.
- 3 Whether the existence of the suit land affects the validity of the judgment.
Ratio Decidendi
The court found that the explanation provided by the defendant's advocate—that the defence was not filed due to inadvertence—was not, on its own, sufficient to set aside the judgment. However, upon reviewing the defence, the court noted that the defendant raised a substantive issue: the suit land allegedly does not exist, having been extinguished by a previous case. The court determined that proceeding without resolving this issue would risk making orders in vain. Therefore, in the interests of justice and to ensure the case is heard on its merits, the court exercised its discretion to set aside the interlocutory judgment and allowed the defence filed out of time to stand as duly filed.
Court Disposition
application allowed
Orders
- The interlocutory judgment entered against the defendant on 25/7/2016 is set aside.
- The defendant is granted leave to file his defence out of time.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ENVIRONMENT & LAND CASE NO. 51 OF 2016.
MATHEW MUNYOLE WAFULA…………………………………PLAINTIFF
VERSUS.
JAPHETHER WAMALWA KILUI……...……………………….DEFENDANT
R U L I N G.
[1].This application is brought under order 10 Rule II of the CPR. The applicant seeks for setting aside the Judgment of this court of 25/7/2016. Counsel for the applicant states that on 6/8/2016 the defendant instructed him to enter appearance and file a defence. That he duly entered appearance on 6/8/2016 but forgot to file the defence. He found out that the Judgment had been entered on 25/7/2016 and the case was cause listed for formal proof on 5-12-2016. He filed a defence on 5-12-2016.
[2].The plaintiff filed a replying Affidavit on 10/1/2016 and opposed the application. He argued that the defendant was served and he entered appearance and did not file his defence. That the defendant ignored the courts summons and that the defence and this application has been made as an afterthought.
[3].I have perused the Affidavit of Mr. J.S. Khakula advocate sworn on 6th December, 2016. There is nothing in the Affidavit that can make the court set aside the Judgment. The reason that his firm forgot to file the defence is not good enough.
However, I have perused the Defence he filed in court on 5/12/2016. It states that the Land parcel Kimilili/Kimilili/4087 does not exist. That it was extinguished by Bungoma HCCC NO. 113 of 2002. If indeed the suit land does not exist, this court will be making orders invain. This case therefore must be heard on merits. I will therefore set aside the interlocutory Judgment entered against the defendant on 25/7/2016 and grant the defendant leave to file his defence out of time. The defence filed and served on the plaintiff on 5/12/2016 will be deemed as duly filed.
The costs of this application shall be to the respondents to be paid by the applicants and to be assessed by the deputy registrar of this court.
Ruling read in open court in the presence of the Plaintiff.
DATED at BUNGOMA this 6th day of April, 2017.
S. MUKUNYA
JUDGE
In the presence of:
Court Assistant: Gladys
Plaintiff: Present
Defendant: Absent