[2023] KEELC 340 (KLR)
The court found that the 1st defendant had been actively represented and involved in the proceedings since the early stages of the trial, never raising the issue of service of summons until late in the process. The 1st defendant did not file a defence, witness statements, or supporting documents, and failed to...
Source-derived case information.
- Citation
- [2023] KEELC 340 (KLR)
- Parties
- Plaintiff: Joel Motaroki Ombongi; Defendant: Chami Simiyu; Defendant: Embakasi Ranching Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 88 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Oral Application After Close of Plaintiff's Case
- Outcome
- Application allowed; matter to proceed as an undefended claim.
- Judges
- LN Mbugua
- Legal Topics
- Service of Summons, Undefended Claims, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Motaroki Ombongi
Plaintiff
Chami Simiyu
Defendant
Embakasi Ranching Company Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Oral Application After Close of Plaintiff's Case
Legal Issues
- 1 Whether the 1st defendant was properly served with summons to enter appearance.
- 2 Whether the matter should proceed as an undefended claim due to the 1st defendant's conduct.
- 3 Whether the right to be heard has been forfeited by the 1st defendant's actions.
Ratio Decidendi
The court found that the 1st defendant had been actively represented and involved in the proceedings since the early stages of the trial, never raising the issue of service of summons until late in the process. The 1st defendant did not file a defence, witness statements, or supporting documents, and failed to provide a satisfactory explanation for absence at the hearing. The court held that the issue of service was not contested during the suit's lifespan and that the 1st defendant's conduct amounted to a waiver of the right to contest service and to be heard. Consequently, the court allowed the plaintiff's application to treat the matter as an undefended claim and directed that a date...
Court Disposition
Application allowed; matter to proceed as an undefended claim.
Orders
- The matter is to be treated as an undefended claim.
- A date for judgment shall be given.
Full Case Text
Judgment text and source record
26 paragraphs
Ombongi v Simiyu & another (Environment & Land Case 88 of 2017) [2023] KEELC 340 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEELC 340 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 88 of 2017
LN Mbugua, J
January 26, 2023
Between
Joel Motaroki Ombongi
Plaintiff
and
Chami Simiyu
1st Defendant
Embakasi Ranching Company Limited
2nd Defendant
Ruling
1. This ruling relates to an oral application made by counsel for the plaintiff on October 3, 2022 after the closure of their case where the court was urged to consider the matter as an undefended claim and proceed to give a date for judgment.
2. Counsel for 1st defendant opposed the said application averring that 1st defendant was never served with summons to enter appearance. In rejoinder, counsel for the plaintiff averred that summons were served way back in February 2017 and that the 1st defendant had failed to file any defence but instead just focused on interlocutory applications.
3. I have considered the application, the rejoinder thereof as well as the litigation history.
4. Firstly, I find that the 1st defendant has been represented in court right from the infancy stage of the trial on June 12, 2017. To this end, the 1st defendant has actively been involved in the litigation journey of the suit for the last five years, so much so that on 11. 5.2021, the matter was fixed for hearing on February 14, 2022 in the presence of counsel for 1st defendant. The question begging for an answer is; why was the 1st defendant not raising any query when the matter was being fixed for hearing of the main suit that time?.
5. It is also noted that the 1st defendant has never raised the issue of service of summons until October 3, 2022, nor did they seek leave to defend the suit, and there are no witness statements or documents filed in support of his case.
6. The 1st defendant is raising the issue of service of summons rather late in the day. I find that whereas service of summons is a vital step in initiating litigation (see Lee Mwathi Kimani v National Social Security Fund & Another) 2014 eKLR, the issue of summons was not a subject of contest during the lifespan of this suit.
7. In the case of Industrial and Commercial Development Corporation V Sum Model Industries Limited [2007] eKLR, the court of Appeal stated that:“The appellant without any hesitation or protestation filed a written statement of defence and participated in the proceedings of the case without any complaint. And whether or not the summons to enter appearance violated order IV rules (3) and (4) of the Civil Procedure Rules is neither here or there as the summons was not made part of the record of appeal.”
8. It is noted that when the matter was called out in the virtual platform on the date of the hearing on October 3, 2022, counsel for the 1st defendant informed the court that “we are ready”, thus the matter was allocated time at 10. 30 am in open court. However, at the scheduled time, the 1st defendant was absent and his counsel knew not of his whereabouts. In a short ruling delivered just before the trial, the court observed that no good reasons had been advanced as to why the 1st defendant was absent in court. This is another tell tale sign that the 1st defendant has not been vigilant in the prosecution of his case.
9. The right to be heard has always been a well protected right in our Constitution and is also the cornerstone of the rule of law – see Wachira Karani vs Bildad Wachira[2016] eKLR. However, this is a case whereby the 1st defendant has squandered that right. In that regard, I do allow the application made to the effect that this is an undefended claim. The court will therefore proceed to give a date for judgment but parties shall be given an opportunity to file their submissions.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JANUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Ndete holding brief for Nyaudi for PlaintiffNyoike for 1st DefendantCourt Assistant: Eddel