[2014] KEHC 3610 (KLR)
The court found that the 2nd defendant had failed to enter appearance or file a defence, justifying the entry of default judgment against him under the Civil Procedure Rules. The 1st defendant, though served, did not appear at the hearing, and the plaintiff's application to strike out his defence as an abuse of...
Source-derived case information.
- Citation
- [2014] KEHC 3610 (KLR)
- Parties
- Plaintiff: Rosemary Wanjira Gathigira; Defendant: Clement Munyiri Gachanja; Defendant: Joseph Mwangi Mangeka; Defendant: Gerald Nganga Kimani; Defendant: Jeremiah Joseph Kimani; Defendant: Joseph Erasmus Kimani
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 303 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Default Judgment and Striking Out of Defence
- Outcome
- Application allowed; orders granted as prayed in the Notice of Motion dated 3rd March 2014.
- Judges
- BN Olao
- Legal Topics
- Default Judgment, Striking Out Defence, Admissions in Pleadings, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wanjira Gathigira
Plaintiff
Clement Munyiri Gachanja
Defendant
Joseph Mwangi Mangeka
Defendant
Gerald Nganga Kimani
Defendant
Jeremiah Joseph Kimani
Defendant
Joseph Erasmus Kimani
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Default Judgment and Striking Out of Defence
Legal Issues
- 1 Whether default judgment should be entered against the 2nd defendant for failure to appear or file a defence.
- 2 Whether the 1st defendant's statement of defence should be struck out as an abuse of court process.
- 3 Whether judgment should be entered for the plaintiff based on admissions in the 3rd, 4th and 5th defendants' defence.
Ratio Decidendi
The court found that the 2nd defendant had failed to enter appearance or file a defence, justifying the entry of default judgment against him under the Civil Procedure Rules. The 1st defendant, though served, did not appear at the hearing, and the plaintiff's application to strike out his defence as an abuse of court process was unopposed. The 3rd, 4th, and 5th defendants admitted the plaintiff's claim in their defence, entitling the plaintiff to judgment as prayed in the plaint. The application was not opposed by any party present, and the court exercised its discretion to grant all the orders sought by the plaintiff, including costs against the 1st and 2nd defendants.
Court Disposition
Application allowed; orders granted as prayed in the Notice of Motion dated 3rd March 2014.
Orders
- Default judgment entered against the 2nd defendant for failure to appear or file a defence.
- The 1st defendant's statement of defence dated 13th June 2013 is struck out as an abuse of court process.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 303 OF 2013
ROSEMARY WANJIRA GATHIGIRA ……………………. PLAINTIFF
VERSUS
CLEMENT MUNYIRI GACHANJA )
JOSEPH MWANGI MANGEKA )
GERALD NGANGA KIMANI ) DEFENDANTS
JEREMIAH JOSEPH KIMANI )
JOSEPH ERASMUS KIMANI )
RULING
This is in respect to the plaintiff/applicant’s Notice of Motion dated 3rd March 2014 seeking the following orders:-
That a default judgment be entered against the 2nd defendant who has failed to appear or file any defence
That the 1st defendant’s statement of defence dated 13th June 2013 be struck out as it is otherwise an abuse of the Court process
That judgment be entered for the plaintiff as prayed in the plaint dated 8th March 2013 as per the admissions contained in the 3rd, 4th and 5th defendants’ statement of defence dated 11th July 2013.
That costs of the application and the suit be borne by the 1st and 2nd defendants.
The application was grounded on the grounds set out therein and supported by the applicant’s affidavit dated 3rd March 2014.
When the said application came up for hearing before me today, Mr. Muchira appeared for the plaintiff/applicant while Mr.Kimathi appeared for the 3rd, 4th and 5th defendants. Mr. Kimani for 1st defendant did not appear though served. The 2nd defendant has not entered any appearance or filed a defence. As the said application was not opposed, Mr. Muchira urged me to grant the orders therein.
Mr. Kimathi did not oppose the application saying his clients were victims of fraud.
I have considered the application. It is not opposed.
I therefore allow the same and grant the orders sought by the plaintiff/applicant in her Notice of Motion dated 3rd March 2014. The costs of the application and the suit shall be borne by the 1st and 2nd defendants.
It is so ordered.
B.N. OLAO
JUDGE
2ND JULY 2014
Ruling delivered in open Court this 2nd day of July 2014 soon after the hearing.
Mr. Muchira for plaintiff/applicant present
Mr. Kimani for 1st defendant absent (served)
Mr. Kimathi for 3rd, 4th and 5th defendants present
2nd defendant absent.
B.N. OLAO
JUDGE
2ND JULY 2014