[2014] KEHC 2884 (KLR)
The court found that the application to set aside the judgment and for leave to file a defence out of time was entirely misconceived and an abuse of the court process. The judgment delivered on 31st October 2013 had already struck out the plaintiff's suit for lack of proof, effectively resulting in a win for the...
Source-derived case information.
- Citation
- [2014] KEHC 2884 (KLR)
- Parties
- Plaintiff: Samwel Sigira A Koech; Defendant: Vincent Kibet
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Judgment and for Leave to File Defence Out of Time
- Outcome
- application dismissed as an abuse of court process; costs to the defendant/applicant
- Judges
- L Waithaka
- Legal Topics
- Setting Aside Judgment, Service of Process, Leave to File Defence Out of Time, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samwel Sigira A Koech
Plaintiff
Vincent Kibet
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Judgment and for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the judgment entered against the defendant should be set aside for lack of personal service.
- 2 Whether the defendant should be granted leave to file defence out of time.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the application to set aside the judgment and for leave to file a defence out of time was entirely misconceived and an abuse of the court process. The judgment delivered on 31st October 2013 had already struck out the plaintiff's suit for lack of proof, effectively resulting in a win for the defendant. There was therefore no adverse judgment against the defendant to set aside. The court held that there was no basis for the application, as the defendant had already been absolved of liability by the earlier judgment. The application was dismissed as unnecessary and a total abuse of the process of the court, with costs awarded against the defendant/applicant.
Court Disposition
application dismissed as an abuse of court process; costs to the defendant/applicant
Orders
- The application dated 25th April 2014 is dismissed as an abuse of the process of the court.
- Costs of the application shall be borne by the defendant/applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERICHO
ELC CASE NO 5 OF 2012
SAMWEL SIGIRA A KOECH……………….………PLAINTIFF
VERSUS
VINCENT KIBET………………………………..….DEFENDANT
RULING
The Defendant in this suit filed a Notice of Motion dated 25th April 2014 under Order 10 Rule 11, Order 22 Rule (1), Section 3, 3A of the Civil Procedure Rules Act and Rules and all enabling provisions of the Law, seeking substantive orders; that the court sets aside the judgment entered against the defendant/applicant; that the defendant be allowed to enter appearance and file his defence out of time as well as costs for the application.
The defendant makes this application on the grounds on the face of the application and supported by his affidavit sworn on 25th April, 2014. He depones that he was not served with summons to enter appearance in person; that the same were received by the Chief of his location; that the Chief only gave them to him on 22nd July, 2013 when he returned home to attend his grandmother’s funeral; that he later received a hearing notice for 28th August, 2013 and presented himself to court on the date of the hearing, but was not given audience as he had not filed any documents; that in the interests of justice and fairness, he should be allowed to file a defense out of time as he has a good defence.
The application was heard on 30th July, 2014. Mr Koech represented the defendant/applicant while Mr Sang represented the plaintiff/respondent.
Mr Koech reiterated what was contained in the affidavit of the applicant. He submitted that failure to effect personal service upon the applicant was a contravention of the Civil Procedure Rules which require that a defendant must be served personally. He further submitted that the court should direct that the chief files an affidavit to explain this state of affairs. He urged the court to allow the application so that the applicant could file his defence, as the effect of the judgment would be to render him landless and a vagrant.
Mr Sang opposed the application. He relied on the replying affidavit dated 18th June, 2014 sworn by the plaintiff, in which the plaintiff deponed that the application was belated, brought in bad faith and meant to delay the course of justice as the defendant was present at the hearing (for formal proof) but never objected at any stage of the proceedings. Furthermore, there was an affidavit of service filed on 6th June, 2013 in which the process server deponed that the defendant was properly served. He prayed that the application be struck out.
Before I consider the merits of the application before me, I must point out that this is a very strange application, more so because the same was filed by an Advocate of the High Court of Kenya. I say this because, had the said advocate bothered to read the judgment delivered by this court on 31st October, 2013, I doubt he would have found it necessary to file the current application. This court struck out the plaintiff’s suit for the reason that the plaintiff had not proved his case to the required standard. That in my view got the defendant off the hook.
I cannot in my wildest dreams imagine why the defendant or his counsel would wish to challenge that Judgment. By denying the plaintiff the orders he was seeking of a permanent injunction and eviction of the defendant from the suit land, the defendant actually won the case. What is even more puzzling is that counsel for the plaintiff was mum about this issue during the hearing of the application.
I choose not to say anymore on this matter. I do not see any point in addressing the merits of the application and I dismiss the same as I find it a total abuse of the process of the court, properly so defined. Costs of this application shall be borne by the defendant/applicant.
Dated and delivered at Kericho this 24th day of September, 2014
L N WAITHAKA
JUDGE
In the presence of:
Mr J K Koech for the Applicant
Mr Mutai holding brief for Mr Sang
Court Assistant: Richard Korir