[2018] KEELC 145 (KLR)
The court found that, in light of the disputed service and the interests of justice, it was appropriate to grant the defendant leave to file a defence out of time. The court also determined that maintaining the status quo—allowing the plaintiff to continue utilizing the suit property—was necessary to preserve the...
Source-derived case information.
- Citation
- [2018] KEELC 145 (KLR)
- Parties
- Plaintiff: SNC; Defendant: MKC
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Review and Leave to File Defence Out of Time
- Outcome
- Application partially allowed.
- Legal Topics
- Service of Process, Review of Orders, Leave to Defend, Status Quo Orders
- 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
SNC
Plaintiff
MKC
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Review and Leave to File Defence Out of Time
Legal Issues
- 1 Whether the defendant was properly served with pleadings and applications.
- 2 Whether the orders made on 14th January 2017 and 14th February 2017 should be reviewed, set aside, modified or varied.
- 3 Whether the defendant should be granted leave to file a defence out of time.
Ratio Decidendi
The court found that, in light of the disputed service and the interests of justice, it was appropriate to grant the defendant leave to file a defence out of time. The court also determined that maintaining the status quo—allowing the plaintiff to continue utilizing the suit property—was necessary to preserve the subject matter of the dispute pending the hearing and determination of the main suit. The court encouraged the parties, who are husband and wife, to consider mediation as they are neither separated nor divorced. The orders previously made were not expressly set aside but were effectively modified by the grant of leave and the status quo order.
Court Disposition
Application partially allowed.
Orders
- Defendant is granted leave to file a defence within 7 days from the date of the ruling.
- Order of maintenance of status quo: plaintiff to continue utilizing the suit property pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO. 35 OF 2017
SNC..................................................PLAINTIFF
VERSUS
MKC.............................................DEFENDANT
RULING
This ruling is in respect of an application dated 19th June 2018 brought by way of notice of motion by the defendant/applicant seeking for the following orders:
a) Spent
b) That the Honourable court be pleased to review, set aside, modify and or vary the order made on 14th January 2017 2017 pending hearing and determination of this application inter partes .
c) That the Honourable court be pleased to review, set aside, modify and or vary order made on the 14th February 2017 and all consequential orders following therefrom pending the hearing and determination of the main suit.
d) That the defendant/applicant be allowed to file his defence out of prescribed time.
e) That costs of this application be provided for.
The defendant’s application is based on the grounds that they were never served with the pleadings and the application.
Counsel for the defendant applicant submitted that the jurisprudence in respect of disputed service is that the process server should always be called for the purposes of cross-examination by the party disputing service.
Counsel for the plaintiff opposed the application and submitted that the defendant was properly served as he was personally served.
Analysis and determination
I have considered the application and submissions of both Counsel and find that an order of maintenance of status quo would be necessary to preserve the substratum of the case pending the hearing and determination of this suit. The status quo is that the plaintiff to continue utilizing the suit property pending the hearing and determination of the suit.
The defendant is granted leave to file a defence within 7 days from the date of this ruling. I notice that this is a case involving a husband and wife, I suggest that they should try mediation to sort out their differences amicably since they are neither separated nor divorced.
Dated and delivered at Eldoret this 13th day of December, 2018
M. A ODENY
JUDGE
Ruling read in open court in the presence of Miss Kipsei and in the absence of the defendant’s counsel.
Mr. Koech: Court Assistant.