[2018] KEELC 4339 (KLR)
The court found that the defendant failed to provide any satisfactory reason for not filing a defence within the prescribed period, despite being duly served and represented by counsel. The draft defence annexed to the application was a mere denial and did not raise any triable issues. Furthermore, the documents...
Source-derived case information.
- Citation
- [2018] KEELC 4339 (KLR)
- Parties
- Plaintiff: Thomas Manthi Mwania; Defendant: Mwelu Martin Kithuku
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 74 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Setting Aside Ex Parte Judgment, Failure to File Defence, Triable Issues, Land Ownership Dispute
- 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
Thomas Manthi Mwania
Plaintiff
Mwelu Martin Kithuku
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex-parte judgment should be set aside due to the defendant's failure to file a defence on time.
- 2 Whether the defendant's draft defence raises any triable issues warranting the reopening of the case.
- 3 Whether the mistake of the defendant's advocate constitutes sufficient cause to set aside the judgment.
Ratio Decidendi
The court found that the defendant failed to provide any satisfactory reason for not filing a defence within the prescribed period, despite being duly served and represented by counsel. The draft defence annexed to the application was a mere denial and did not raise any triable issues. Furthermore, the documents relied upon by the defendant pertained to a different plot (Plot No. 20B), which had already been conclusively determined in a previous suit. The court held that the mistake of counsel, in the absence of a substantive defence, was not sufficient to warrant setting aside the ex-parte judgment. Consequently, the application to set aside the judgment was dismissed as unmeritorious.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 2nd August, 2017 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 74 OF 2016
THOMAS MANTHI MWANIA .....................................PLAINTIFF
VERSUS
MWELU MARTIN KITHUKU ..................................DEFENDANT
RULING
1. In the Application dated 2nd August, 2017, the Defendant is seeking for the following orders:
a. That the Honourable Court to set aside the Ex-parte Judgment herein.
b. The court do allow the Defendant to defend the matter herein.
c. Costs be paid by the Defendant/Applicant.
2. The Application is supported by the Affidavit of the Defendant who has deponed that this matter proceeded for hearing on 29th March, 2017 in his absence and in the absence of his advocate due to an inadvertent mistake on the part of his advocate.
3. According to the Defendant, his advocate thought the matter was coming up for mention; that he sent his clerk to file a Defence and that the mistake of his advocate should not be visited on him.
4. In response, the Plaintiff deponed that the Defendant failed to file a Defence on time; that the hearing date of 8th February, 2017 was taken with the knowledge of the Defendant’s advocate and that in any event the draft Defence is a sham because it relates to Plot No. 20B which is the subject in Kithimani Principal Magistrates Civil Case No. 100 of 2011.
5. Although the Plaintiff’s advocate filed submissions, the Defendant’s/ Appellant’s advocate did not file any submissions.
6. The Plaintiff’s counsel submitted that the failure by the Defendant to attend court was not accidental and is not excusable; that in any event, the documents the Defendant is seeking to rely are in respect to Plot No. 20B and not Plot No. 20 and that he does not have a Defence that raises triable issues.
7. The Defendant has not denied that he was served with the Summons to Enter Appearance and the Plaint. Indeed, the Defendant instructed the firm of J.T. Nzioki and Company advocates which filed a Memorandum of Appearance on his behalf on 21st September, 2016. However, he says his advocates never filed a Defence within the requisite period of fourteen (14) days from the date of filing the Memorandum of Appearance.
8. The record shows that the matter was fixed for hearing for 8th February, 2017 on which date the Defendant’s advocate sent a colleague to hold his brief.
9. On the said date, the court was informed that the Defendant’s advocate was indisposed. Nothing was said about the non-filing of the Defence.
10. The court then fixed the matter for hearing on 29th March, 2017 on which date the Defendant’s counsel again sent a colleague to hold his brief and prayed for an adjournment. Again, no reason was given as to why a Defence had not been filed.
11. The court proceeded with the hearing on the said date and delivered its Judgment on 30th June, 2017.
12. I have gone through the Defendant’s Application and I have not come across a single reason as to why the Defence was not filed within the requisite time.
13. Although the Defendant has annexed a document showing that he is entitled to Plot No. 20B, he has not denied that the issue in respect to Plot No. 20B was determined with finality in Kithimani PMCC No. 100 of 2011 vide a Judgment dated 24th April, 2014.
14. I have also read the draft Defence annexed on the Affidavit and the same is a mere denial. It does not raise any triable issue.
15. In the circumstances, I find the Notice of Motion dated 2nd August, 2017 to be unmeritorious and I dismiss it with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE