[2024] KEELC 1391 (KLR)
The court found that the application by the defendant was unopposed and that there was sufficient cause to allow the defendant to defend the suit on merit. The court exercised its discretion to set aside the orders for formal proof, granted leave to the defendant to file its defence out of time, and reinstated the...
Source-derived case information.
- Citation
- [2024] KEELC 1391 (KLR)
- Parties
- Plaintiff: Shibawa General Interprises Limited; Defendant: China State Construction Engineering Corporation (Kenya) Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Application to Set Aside Formal Proof and for Leave to File Defence Out of Time
- Outcome
- Application allowed. Orders for formal proof set aside. Leave granted to file defence out of time. Hearing reinstated.
- Judges
- PM Njoroge
- Legal Topics
- Setting Aside Orders, Leave to File Defence, Formal Proof Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shibawa General Interprises Limited
Plaintiff
China State Construction Engineering Corporation (Kenya) Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Set Aside Formal Proof and for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the court should set aside the orders allowing the plaintiff to apply for formal proof.
- 2 Whether the defendant should be granted leave to file its defence out of time.
- 3 Whether the hearing should be reinstated to allow the defendant to respond to the claim.
Ratio Decidendi
The court found that the application by the defendant was unopposed and that there was sufficient cause to allow the defendant to defend the suit on merit. The court exercised its discretion to set aside the orders for formal proof, granted leave to the defendant to file its defence out of time, and reinstated the hearing to ensure that the matter is determined on its merits. The court emphasized the importance of allowing parties an opportunity to be heard, especially where the application is not contested.
Court Disposition
Application allowed. Orders for formal proof set aside. Leave granted to file defence out of time. Hearing reinstated.
Orders
- Prayers 2, 3 and 4 in the application are allowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
Shibawa General Interprises Limited v China State Construction Engineering Corporation (Kenya) Limited (Environment & Land Case 1 of 2023) [2024] KEELC 1391 (KLR) (12 March 2024) (Ruling)
Neutral citation: [2024] KEELC 1391 (KLR)
Republic of Kenya
In the Environment and Land Court at Isiolo
Environment & Land Case 1 of 2023
PM Njoroge, J
March 12, 2024
Between
Shibawa General Interprises Limited
Plaintiff
and
China State Construction Engineering Corporation (Kenya) Limited
Defendant
Ruling
1. This application is dated 9/2/2024 and seeks orders;1. That this application be and hereby certified urgent to be heard ex parte in the first instance.2. That this Honourable Court be pleased to set aside and/or vacate the orders allowing the Plaintiff/Respondent to apply for formal proof thereby allowing the Defendant/Applicant to defend the Plaintiff’s suit on merit.3. That the Defendant/Applicant be granted leave to file its defence out of time and the annexed draft defence be deemed as duly filed and served upon payment of the requisite court fees.4. That the hearing of this matter be reinstated in order for the Defendant/Applicant to respond adequately to the claim.5. That the costs of this application be provided for.
2. The application is supported by an affidavit of ISACK DOTI GARBITI on behalf of the defendant.
3. During the date fixed for hearing of the application, Miss Mukuche, the Advocate representing the defendant asked the court to allow the application as it had not been opposed.
4. I agree that the application is not opposed.
5. I issue the following orders:a.Prayers 2, 3 and 4 in the application are allowed.b.Costs shall be in the cause.c.The defendant is granted a period of 21 days to file its defence and any other necessary papers.d.The defendant is directed to serve the orders issued by the court today upon the plaintiff within 10 days of today.e.Parties will come to court for directions on 6/5/2024.
DELIVERED IN OPEN COURT AT ISIOLO THIS 12TH DAY OF MARCH, 2024 IN THE PRESENCE OF:Court assistant: Balozi/RahmaMiss Mukuche for the Applicant.HON. JUSTICE P.M NJOROGEJUDGE