[2014] KEHC 8137 (KLR)
The court found that although the Defendant failed to serve the statement of defence on the Plaintiffs, the Plaintiffs have since obtained a copy from the court file and will not suffer undue prejudice if the suit proceeds to hearing on the merits. The inconvenience caused can be compensated by an award of costs....
Source-derived case information.
- Citation
- [2014] KEHC 8137 (KLR)
- Parties
- Plaintiff: Shalmat Naumi Kassim; Plaintiff: Duke Kibagendi Nyakundi; Plaintiff: Timothy Ayere Chawiyah; Plaintiff: Hebrahim Otieno Mboya; Defendant: The Attorney-General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 125 of 2011
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Malicious Prosecution, Default Judgment, Service of Pleadings, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shalmat Naumi Kassim
Plaintiff
Duke Kibagendi Nyakundi
Plaintiff
Timothy Ayere Chawiyah
Plaintiff
Hebrahim Otieno Mboya
Plaintiff
The Attorney-General
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the Defendant's statement of defence should be struck out for failure to serve it on the Plaintiffs.
- 2 Whether leave should be granted to enter judgment against the Defendant in default of service of defence.
- 3 Whether the Plaintiffs are entitled to judgment as prayed in the plaint.
Ratio Decidendi
The court found that although the Defendant failed to serve the statement of defence on the Plaintiffs, the Plaintiffs have since obtained a copy from the court file and will not suffer undue prejudice if the suit proceeds to hearing on the merits. The inconvenience caused can be compensated by an award of costs. The orders sought are discretionary, and in the circumstances, the court declined to strike out the defence or enter judgment against the Defendant, instead dismissing the application and awarding costs to the Plaintiffs.
Court Disposition
application dismissed
Orders
- The notice of motion dated 30th August 2012 is dismissed.
- Costs of the application are awarded to the Plaintiffs in any event.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 125 OF 2011
SHALMAT NAUMI KASSIM
DUKE KIBAGENDI NYAKUNDI
TIMOTHY AYERE CHAWIYAH
HEBRAHIM OTIENO MBOYA …………….....……......PLAINTIFFS
VERSUS
THE ATTORNEY-GENERAL……………………………………DEFENDANT
R U L I N G
1. The Plaintiffs have applied by notice of motion dated 30th August 2012for three main orders -
(i) That the Defendant’s statement of defence filed in this suit be struck out.
(ii) That leave be granted to enter judgment against the Defendant.
(iii) That judgment be entered against the Defendant as prayed in the plaint.
2. The only ground for the application is that the Defendant has never served its statement of defence upon the Plaintiffs, having filed it on 30th June 2011, and that the Plaintiffs learnt of the existence of the statement of defence when their advocate went to file an application for leave to enter default judgment against the Defendant.
3. The Defendant has not filed any response to the application despite service.
4. The application is stated to be brought under Order 7, rule 1 and Order 10, rules 3 and 8 of the Civil Procedure Rules, 2010 (the Rules). The inherent power of the court has also been invoked.
5. Order 7, rule 1 provides –
“1. Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.”
6. Order 10, rules 3 and 8 provide –
“3. Where a defendant fails to serve either the memorandum of appearance or defence within the prescribed time, the court may on its own motion or on application by the plaintiff, strike out the memorandum of appearance or the defence as the case may be and make such order as it deems fit in the circumstances.”
“8. No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.”
7. The orders sought in the present application are entirely at the discretion of the court. The Plaintiffs’ claims are in the tort of malicious prosecution. The Defendant is the Attorney-General of the Republic of Kenya and is sued for and on behalf of the Commissioner of Police in his capacity as Chief Legal Adviser to the Government of Kenya.
8. Whatever damages may be awarded to the Plaintiffs will be payable from public coffers. The Defendant duly entered appearance and filed a statement of defence dated 28th June 2011. It is not known why service of the same upon the Plaintiffs was overlooked.
9. It appears to me that the Plaintiffs will not suffer any undue prejudice if their suit proceeds to hearing on the merits. They have no doubt obtained a copy of the statement of defence from the court file, and they should now prepare the suit for hearing. Whatever inconvenience they may have suffered will be adequately compensated by an award of costs.
10. In the circumstances I will refuse the notice of motion dated 30th August 2012. It is hereby dismissed. I award costs of that application to the Plaintiffs in any event. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 25th DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 25th DAY OF JULY 2014