[2020] KEELC 2489 (KLR)
The court found that the Plaintiffs' explanation for non-attendance at the hearing of the Defendants' application was unsupported by evidence, as no diary entry or other documentation was provided to substantiate the claim of mis-diarization. Furthermore, the Plaintiffs failed to annex a draft Replying Affidavit to...
Source-derived case information.
- Citation
- [2020] KEELC 2489 (KLR)
- Parties
- Plaintiff: Mbithi Muyanga; Plaintiff: Charles Muema; Plaintiff: Paul Ngumbi; Plaintiff: Augustine Ngila; Plaintiff: Muteti Muli; Defendant: Muthusi Ndetto; Defendant: Mbulwa Nthenge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 188 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Order
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Setting Aside Judgment, Service of Process, Ex Parte Orders, Application for Reinstatement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbithi Muyanga
Plaintiff
Charles Muema
Plaintiff
Paul Ngumbi
Plaintiff
Augustine Ngila
Plaintiff
Muteti Muli
Plaintiff
Muthusi Ndetto
Defendant
Mbulwa Nthenge
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Order
Legal Issues
- 1 Whether the order given on 30th May, 2019 setting aside the judgment dated 11th May, 2018 should itself be set aside.
- 2 Whether the Plaintiffs have provided sufficient justification for their non-attendance at the hearing of the Defendants' application.
- 3 Whether the Plaintiffs' failure to file a draft Replying Affidavit is fatal to their application.
Ratio Decidendi
The court found that the Plaintiffs' explanation for non-attendance at the hearing of the Defendants' application was unsupported by evidence, as no diary entry or other documentation was provided to substantiate the claim of mis-diarization. Furthermore, the Plaintiffs failed to annex a draft Replying Affidavit to demonstrate that they had a substantive response to the Defendants' assertion of non-service of Summons to Enter Appearance. The absence of such evidence rendered the Plaintiffs' application unmeritorious. The court concluded that the Plaintiffs had not met the threshold for setting aside the order of 30th May, 2019, and dismissed the application with costs.
Court Disposition
application dismissed
Orders
- The application dated 1st July, 2019 is dismissed with costs to the Defendants.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 188 OF 2017
MBITHI MUYANGA..........................................1ST PLAINTIFF
CHARLES MUEMA...........................................2ND PLAINTIFF
PAUL NGUMBI..................................................3RD PLAINTIFF
AUGUSTINE NGILA.........................................4TH PLAINTIFF
MUTETI MULI..................................................5TH PLAINTIFF
VERSUS
MUTHUSI NDETO.........................................1ST DEFENDANT
MBULWA NTHENGE...................................2ND DEFENDANT
RULING
1. The Notice of Motion dated 1st July, 2019 is seeking for the following orders:
a. That the order given on 30th May, 2019 setting aside the Judgment dated 11th May, 2018 be set aside.
b. That the Defendants’ Application dated 7th February, 2019 be set down for hearing on merits.
c. That the costs of this Application be provided by Defendants.
2. The Application is supported by the Affidavit of the Plaintiffs’ advocate who has deponed that he was served with the Defendants’ Application dated 7th February, 2019 on 13th May, 2019; that the said Application did not have a hearing date and that on 13th May, 2019 his office was served with a hearing notice of 30th May, 2019 but his clerk, through inadvertence, mis-diarized the matter and indicated the same as coming up for hearing on 13th June, 2019.
3. Counsel deponed that when the matter came up for hearing, the Plaintiffs’ advocate was not in court; that the Defendants’ Application dated 7th February, 2019 was heard without the participation of the Plaintiffs and that it is in the interest of justice that the Application be allowed.
4. In reply, the Defendants’ advocate submitted that on 13th May, 2019, the Plaintiffs’ advocate was duly served with the Application dated 7th February, 2019 together with the hearing notice for 30th May, 2019 and that during the hearing, neither the Plaintiffs nor their advocate were in court.
5. Counsel submitted that on 4th July, 2019, they filed an amended Defence and a Counter-claim which was served upon the Plaintiffs’ advocate on 5th July, 2019 and the orders having been issued on 30th May, 2019, the Plaintiffs waited for a month before filing the current Application.
6. The Defendants averred that the amended Defence and Counter-claim has already been filed and is part of the record; that the Plaintiffs are guilty of undue delay; that the Defendants are the registered owners of the suit property and that the suit should be heard a fresh to enable the Defendants articulate their Defence.
7. The Plaintiffs and the Defendants filed their respective submissions in which they reinstated the depositions in their respective Affidavits, which I have considered.
8. The record shows that on 7th February, 2019, the Defendants filed an Application of even date seeking to set aside the ex-parte Judgment dated 11th May, 2018 and the subsequent Decree issued on 24th August, 2018. The Defendants also sought for leave to file their Defence out of time.
9. The Plaintiffs’ advocate has admitted that he was served with the said Application together with a hearing notice for 30th May, 2019 on 13th May, 2019. According to the Plaintiffs’ counsel, instead of his clerk diarizing the hearing date as 30th May, 2019, he mis-diarized it for 13th June, 2019. On that ground, the Plaintiffs are seeking to set aside the order of 30th May, 2019 which allowed the Defendants’ Application.
10. After the Defendants’ Application dated 7th February, 2019 was allowed, the Defendants filed and served the Defence on 3rd June, 2019 which was duly served on the Plaintiffs’ advocate.
11. Although the Plaintiffs’ advocate has submitted that his clerk diarized the hearing date as 13th June, 2019, he has not annexed a copy of his diary for 30th May, 2019 to show that the hearing of the Application in respect to this suit was never diarized for 30th May, 2019.
12. In his Application dated 7th February, 2019, the 1st Defendant deponed that he was not served with Summons to Enter Appearance and that he only came to learn about the existence of the suit when his son was served with the Decree herein. The 1st Defendant further deponed that he is the registered proprietor of the suit property and that he has a triable Defence.
13. The Plaintiffs herein have not exhibited a draft Replying Affidavit to the Defendants’ Application dated 17th February, 2019 to enable the court ascertain if indeed the said Affidavit raises any serious rebuttal to the 1st Defendant’s claim that he was never served with the Summons to Enter Appearance. That omission renders the current Application unmeritorious.
14. For the reasons I have given, I dismiss the Application dated 1st July, 2019 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 15TH DAY OF MAY, 2020.
O.A. ANGOTE
JUDGE