[2018] KEELC 1327 (KLR)
The court held that the interested party's application to stay the ruling and reopen proceedings was procedurally improper. The applicant should have waited for the judgment to be delivered and then applied to set it aside and seek leave to file his response. Since no ruling or judgment had been rendered, the...
Source-derived case information.
- Citation
- [2018] KEELC 1327 (KLR)
- Parties
- Applicant: Musyoka Wambua Kasupha; Respondent: The Minister of Lands through the Minister of Interior and Coordination of National; Interested Party: Johnson Kituu Kajambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 11 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Reopening of Proceedings
- Outcome
- application dismissed
- Judges
- CK Yano
- Legal Topics
- Setting Aside Ex Parte Judgment, Extension of Time, Procedural Irregularities, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musyoka Wambua Kasupha
Applicant
The Minister of Lands through the Minister of Interior and Coordination of National
Respondent
Johnson Kituu Kajambo
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Reopening of Proceedings
Legal Issues
- 1 Whether the interested party's failure to file a response due to illness justifies reopening proceedings and staying the ruling.
- 2 Whether the application for stay and reopening is procedurally proper under the relevant law.
Ratio Decidendi
The court held that the interested party's application to stay the ruling and reopen proceedings was procedurally improper. The applicant should have waited for the judgment to be delivered and then applied to set it aside and seek leave to file his response. Since no ruling or judgment had been rendered, the application was premature and incompetent. The court found no sufficient grounds to grant the orders sought and dismissed the application accordingly.
Court Disposition
application dismissed
Orders
- The application dated 31st May, 2018 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION
MISCELLANEOUS CIVIL APPLICATION NO. 11 OF 2017(JR)
MUSYOKA WAMBUA KASUPHA...................................................APPLICANT
VERSUS
THE MINISTER OF LANDS THROUGH THE MINISTER OF
INTERIOR AND COORDINATION OF NATIONAL.................RESPONDENT
RULING
1. This ruling is in respect of the Notice of Motion dated 31st May, 2018 by the Interested Party, Johnson Kituu Kajambo. The application seeks two principal orders, namely, that there be stay/arrest of the ruling in the main motion herein and the proceedings be re-opened to allow the applicant file his response to the said motion.
2. The grounds upon which the application is premised are on the face of the application and in the facts set out in the affidavit of the applicant sworn on 31st May 2018. The applicant is the interested party herein and has deponed that he failed to file his response to the case because he was unwell, and the matter proceeded without his input.
3. The application is opposed. There is a replying affidavit sworn by Musyoka Wambua Kasupha, the ex-parte applicant on 19th September, 2018. There are also grounds of opposition dated 25th July, 2018. The respondent pleads that the application is incompetent and an abuse of the court process.
4. I have considered the application, the affidavits on record and the oral submissions by counsel. Where an ex-parte judgment is entered against a party who has failed to appear within the stipulated period, there are provisions in the relevant law providing for the filing of applications to set aside the interlocutory judgment and to expand time for filing response. This is the route the applicant ought to have taken in the matter. He did not avail himself of the opportunity.
5. As it is, the approach to this court by the applicant to stay delivery of judgment was unprocedural. He could have waited for the judgment to be determined and move thereafter to have it set aside and for leave to file his replies to the motion. No ruling or judgment had been rendered.
6. I am not satisfied that the orders sought in the application are for granting.
7. Accordingly, I find that the application is incompetent. Consequently I do hereby dismiss the application.
It is so ordered.
DATED, DELIVERED and SIGNED at MOMBASA this 18TH day of October, 2018
__________
C. YANO
JUDGE