[2007] KEHC 1960 (KLR)
The court found that the statement of defence was filed by the Attorney General on 16th April 2006, before any interlocutory or final judgment had been entered against the defendants. According to Order IX Rule 1 of the Civil Procedure Rules, a defendant is entitled to file a defence at any time before interlocutory...
Source-derived case information.
- Citation
- [2007] KEHC 1960 (KLR)
- Parties
- Plaintiff: Neuberger Reinhard; Plaintiff: John Kabau; Defendant: Attorney General; Defendant: Police Commissioner; Defendant: Jactone Simiyu Lokorito; Defendant: James Maina; Defendant: Cyrus Mikunu
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 57 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Apply for Judgment
- Outcome
- application dismissed
- Judges
- CA Ombija
- Legal Topics
- Default Judgment, Filing of Defence, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neuberger Reinhard
Plaintiff
John Kabau
Plaintiff
Attorney General
Defendant
Police Commissioner
Defendant
Jactone Simiyu Lokorito
Defendant
James Maina
Defendant
Cyrus Mikunu
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Apply for Judgment
Legal Issues
- 1 Whether the plaintiffs are entitled to leave to apply for judgment due to the defendants' failure to file a defence within the prescribed period.
- 2 Whether the defence filed by the Attorney General out of time without leave of court is valid and properly on record.
Ratio Decidendi
The court found that the statement of defence was filed by the Attorney General on 16th April 2006, before any interlocutory or final judgment had been entered against the defendants. According to Order IX Rule 1 of the Civil Procedure Rules, a defendant is entitled to file a defence at any time before interlocutory or final judgment is entered. Since no such judgment had been entered at the time the defence was filed, the defence was properly on record and valid. Consequently, the plaintiffs' application for leave to apply for judgment was not merited and was dismissed.
Court Disposition
application dismissed
Orders
- The application for leave to apply for judgment is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI CIVIL CASE 57 OF 2006
NEUBERGER REINHARD
JOHN KABAU ................................……………………………………… PLAINTIFFS
VERSUS
ATTORNEY GENERAL
POLICE COMMISSIONER
JACTONE SIMIYU LOKORITO
JAMES MAINA
CYRUS MIKUNU ............................... ……………..…………………. DEFENDANTS
R U L I N G
By an application by way of Chamber Summons dated 7th February 2007, under Order 9A Rule 7 of the Civil Procedure Rules, the applicant seeks orders:
1. That the plaintiffs/applicants be granted leave to apply for judgment.
2. THAT the costs of this application be provided for.
The application is based on the ground:
1. That the Attorney General has failed and/or neglected to file a written statement of Defence and the period for filing the same has long expired.
The application is predicated upon the annexed affidavit of Neuberger Reinhard sworn on the 7th day of February 2007.
The respondent was served with a hearing notice for the said application as per the affidavit of one Fredrick Kudoi, sworn on the 16th day of February 2007 but failed to attend the hearing. The application thus proceeded ex-parte with the leave of the court.
For the applicant, it was argued that the Attorney General was served with the plaint and entered appearance on 25th august 2006 but failed to file a defence. That consequently the plaintiff filed the subject application for leave to apply for judgment against the Attorney General on 7th February 2006. That the delay in filing the defence is inordinate. That though there is a statement of defence dated 16th February 2007, it was filed out of time and without leave of the court.
I have carefully perused the court file and find as a fact that a statement of defence was filed on 16th April 2006 by the Attorney General for and on behalf of the 2nd, 3rd, 4th and 5th defendants. By that time no judgment had been obtained against the Government.
The defendant filed grounds of opposition to the application dated 21st March 2007 but failed to attend the hearing.
Order IX Rule 1 of the Civil Procedure Rules provides:
“A defendant may appear at any time before final judgment, and may file a defence at any time before interlocutory judgment is entered against him, or, if no interlocutory judgment is so entered, at any time, before final judgment.”
It is clear to me from the record that the defence was filed on 16th April 2006 by the Attorney General. By that time no interlocutory judgment had been obtained against the defendant. No final judgment had equally been entered against him. Accordingly, the defence on record was properly entered as by law enjoined.
In the result, I find that this application is not merited. Accordingly, I dismiss it with no order as to costs.
Dated and delivered at Malindi the 18th Day of June 2007.
N.R.O. OMBIJA
JUDGE