[2018] KEELC 3008 (KLR)
The court found that since the suit had not yet been heard, granting leave to the 1st and 2nd Defendants to file and serve their defence and counterclaim would not prejudice the Plaintiff. The court also noted that the 2nd Defendant, as the son of the deceased, is in a position to provide information regarding the...
Source-derived case information.
- Citation
- [2018] KEELC 3008 (KLR)
- Parties
- Plaintiff: Ramokia Housing Co-operative Society Limited; Defendant: George Kuria Mwaura; Defendant: Kimani Kahuhu; Defendant: Arther K. Waweru, Antony K. Njuguna and Samwel M. Mungai as Trustees of Mt. Hebron Self Help Group
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 339 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to File Defence and Counterclaim
- Outcome
- application allowed with costs to the plaintiff
- Judges
- AK Bor
- Legal Topics
- Leave to File Defence, Counterclaim Procedure, Joinder of Parties, Estate Administration, Delay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramokia Housing Co-operative Society Limited
Plaintiff
George Kuria Mwaura
Defendant
Kimani Kahuhu
Defendant
Arther K. Waweru, Antony K. Njuguna and Samwel M. Mungai as Trustees of Mt. Hebron Self Help Group
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to File Defence and Counterclaim
Legal Issues
- 1 Whether the 1st and 2nd Defendants should be granted leave to file their defence and introduce a counterclaim.
- 2 Whether the Plaintiff will suffer prejudice if leave is granted.
- 3 Whether the 1st and 2nd Defendants were properly joined as parties in the absence of the legal administrators of the estate of the late Kahuhu Kuogothoka.
Ratio Decidendi
The court found that since the suit had not yet been heard, granting leave to the 1st and 2nd Defendants to file and serve their defence and counterclaim would not prejudice the Plaintiff. The court also noted that the 2nd Defendant, as the son of the deceased, is in a position to provide information regarding the estate's administration. The court exercised its discretion to allow the application, emphasizing that the interests of justice are served by allowing parties to present their full case, provided that no undue prejudice is caused to the opposing party. The 1st and 2nd Defendants were therefore granted leave to file and serve their defence and counterclaim within seven days, but...
Court Disposition
application allowed with costs to the plaintiff
Orders
- The 1st and 2nd Defendants are granted leave to file and serve their defence and counterclaim within 7 days of the ruling.
- The 1st and 2nd Defendants shall bear the costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CIVIL SUIT NO. 339 OF 2010
RAMOKIA HOUSING CO-OPERATIVE
SOCIETY LIMITED.................................................................PLAINTIFF
-VERSUS-
GEORGE KURIA MWAURA.........................................1ST DEFENDANT
KIMANI KAHUHU.........................................................2ND DEFENDANT
ARTHER K. WAWERU, ANTONY K. NJUGUNA AND
SAMWEL M. MUNGAI AS TRUSTEES OF
MT. HEBRON SELF HELP GROUP............................3RD DEFENDANT
RULING
The 1st and 2nd Defendants seek leave to file their defence and introduce a counterclaim and to have the draft Defence and Counterclaim attached to the application dated 18/4/2018 deemed as properly filed after payment of the requisite court charges.
The application is based on the ground that the suit has not been heard hence the Plaintiff will suffer not prejudice while the 1st and 2nd Defendants stand to suffer great prejudice if the suit is allowed to proceed to full trial in its present state. The Defendants deny being the administrators of the estate of the late Kahuhu Kuogothoka. The Applicants fault the Plaintiff for joining them in original suit while leaving out the legal administrators. The Applicants wish to introduce a counterclaim to the suit. The application is supported by the affidavit of the 1st Defendant.
The court notes that the Applicants have interchanged the Parties in the application. For ease of reference the court will refer to the parties as they appear in the original suit.
The Plaintiff opposes the application and relies on the Replying Affidavit of John Osoro filed on 11/5/2018. The Plaintiff maintains that the 1st and 2nd Defendants are keen on delaying the hearing of the suit as they filed this application after the case was fixed for hearing. The matter is fixed for hearing on 3/7/2018. The Plaintiff contends that most of the issues raised by the 1st and 2nd Defendants in the application were dealt with in the court’s decision of 14/12/2017. The court has looked at that ruling and notes that the 1st and 2nd Defendants were appointed attorneys in respect of the Suit Land through a power of attorney. The 2nd Defendant is the son of the late Kahuhu Kuogothoka. He is the right person to supply the Plaintiff with details of who the administrators of the late Kahuhu Kuogothoka are or the status of the administration of that estate.
The court grants the 1st and 2nd Defendants leave to file and serve their defence and counterclaim within 7 days of today. The 1st and 2nd Defendants will bear the costs of the application.
Dated and delivered at Nairobi this 31st day of May 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Nyamweya holding brief for Mr. Ogeto for the Plaintiff
Mr. Lang’at for the Defendant
Mr. V. Owuor- Court Assistant