[2019] KEELC 1078 (KLR)
The court found that the 2nd defendant is a necessary party to the proceedings, as both the plaintiff and the 1st defendant claim to have purchased the suit property from it. The court held that the presence of the 2nd defendant is essential for the fair and just adjudication of the dispute. Guided by Article...
Source-derived case information.
- Citation
- [2019] KEELC 1078 (KLR)
- Parties
- Plaintiff: Teresia Njeri Njuguna; Defendant: Veronica Wanjiku Gitonga; Defendant: Embakasi Ranching Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 394 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Leave to File Defence Out of Time
- Outcome
- Application allowed. Leave granted to 2nd defendant to file and serve defence out of time.
- Judges
- LC Komingoi
- Legal Topics
- Leave to Defend Out of Time, Joinder of Parties, Amendment of Pleadings, Administration of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Njeri Njuguna
Plaintiff
Veronica Wanjiku Gitonga
Defendant
Embakasi Ranching Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the 2nd defendant should be granted leave to file and serve its defence out of time.
- 2 Whether the presence of the 2nd defendant is necessary for the fair adjudication of the dispute.
- 3 Whether the court should allow amendment of pleadings by the parties.
Ratio Decidendi
The court found that the 2nd defendant is a necessary party to the proceedings, as both the plaintiff and the 1st defendant claim to have purchased the suit property from it. The court held that the presence of the 2nd defendant is essential for the fair and just adjudication of the dispute. Guided by Article 159(2)(d) of the Constitution, which emphasizes the administration of justice without undue regard to technicalities, the court was satisfied that the 2nd defendant had provided sufficient reasons for its delay and should be allowed to defend the suit. The court therefore granted leave to the 2nd defendant to file and serve its defence out of time and allowed corresponding amendments...
Court Disposition
Application allowed. Leave granted to 2nd defendant to file and serve defence out of time.
Orders
- Leave is granted to the 2nd defendant/applicant to file and serve its defence within 21 days from the date hereof.
- The plaintiff and the 1st defendant shall have corresponding leave to amend the plaint/defence respectively if need be.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO.394 OF 2011
TERESIA NJERI NJUGUNA.......................................................PLAINTIFF
VERSUS
VERONICA WANJIKU GITONGA..................................1ST DEFENDANT
EMBAKASI RANCHING COMPANY LIMITED..........2ND DEFENDANT
RULING
1. This is the notice of motion dated 6th June 2017 brought under order 10 rule 11 and order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law.
2. It seeks orders
(1) Spent.
(2) The 2nd defendant/applicant be granted leave to file and serve its defence out of time and hence allowed to defend this suit on merit.
(3) Any other or further orders that this honourable court deem fair and just to grant for fair and proper determination of the dispute herein.
(4) The costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraphs (a) to (e).
4. The application is supported by the affidavit of Jack Kamau Wachira a surveyor of the 2nd defendant/applicant sworn on the 6th June 2017.
5. The application is opposed. There are grounds of opposition filed by the plaintiff/respondent dated 30th August 2017. The 1st defendant/respondent has sworn a replying affidavit in support of the 2nd defendant’s/applicant’s application.
6. The application was canvassed by way of written submissions.
7. I have considered the notice of motion and the affidavit in support. I have also considered the grounds of opposition and the replying affidavit. The issue for determination is whether this application is merited.
8. The plaintiff and the 1st defendant claim to have bought the suit property from the 2nd defendant. The 2nd defendant is therefore a necessary party to these proceedings. Its presence will assist the court to fairly and justly adjudicate and determine this dispute.
9. I am guided by Article 159 (2) (d) of the Constitution which implores this court to administer justice without undue regard to technicalities.
10. I am satisfied that the 2nd defendant/applicant has given sufficient reasons to warrant this court to allow it to defend this suit.
11. Accordingly, I find merit in this application and grant the orders sought namely:-
(a) That leave is granted to the 2nd defendant/applicant to file and serve its defence within 21 days from the date hereof.
(b) The plaintiff and the 1st defendant shall have corresponding leave to amend the plaint/defence respectively if need be.
(c) The costs of this application be borne by the 2nd defendant/applicant.
It is so ordered.
Dated, signed and delivered in Nairobi on this 24th day of October 2019.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Plaintiff
Mr. Gachuhi for the 1st defendant and also holding brief for Mr. Ngato for the 2nd Defendant
Kajuju -Court Assistant