[2012] KEHC 542 (KLR)
The court held that judgment in default of appearance can only be entered for liquidated demands under Order 10 rule 4 of the Civil Procedure Rules. Since the present claim concerns land and is not a liquidated demand, the cited provisions do not apply. Furthermore, the Land Disputes Tribunal Act had been repealed,...
Source-derived case information.
- Citation
- [2012] KEHC 542 (KLR)
- Parties
- Plaintiff: Waiu Nzalu; Plaintiff: Mutulu Nzalu; Defendant: James Ngomo Mbwika; Defendant: Makueni District Land Disputes Tribunal
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 209 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Judgment in Default
- Outcome
- Application dismissed. No order as to costs.
- Judges
- GMA Dulu
- Legal Topics
- Default Judgment, Liquidated Demands, Land Disputes, Repeal of Statute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waiu Nzalu
Plaintiff
Mutulu Nzalu
Plaintiff
James Ngomo Mbwika
Defendant
Makueni District Land Disputes Tribunal
Defendant
Procedural Posture
Civil Case / Ruling on Application for Judgment in Default
Legal Issues
- 1 Whether judgment can be entered against the 2nd defendant in default of appearance for a land claim.
- 2 Whether Order 10 rule 4 of the Civil Procedure Rules applies to claims that are not for liquidated demands.
- 3 Effect of the repeal of the Land Disputes Tribunal Act on the existence of the Tribunal.
Ratio Decidendi
The court held that judgment in default of appearance can only be entered for liquidated demands under Order 10 rule 4 of the Civil Procedure Rules. Since the present claim concerns land and is not a liquidated demand, the cited provisions do not apply. Furthermore, the Land Disputes Tribunal Act had been repealed, and as a result, the 2nd defendant, the Makueni Land Disputes Tribunal, no longer exists in law. Therefore, the application for judgment against the 2nd defendant was without merit and was dismissed.
Court Disposition
Application dismissed. No order as to costs.
Orders
- The application dated 17th August 2012 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
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1. WAIU NZALU
2. MUTULU NZALU …………………………………..… PLAINTIFFS/APPLICANTS
VERSUS
1. JAMES NGOMO MBWIKA
2. MAKUENI DISTRICT LAND
3. DISPUTES TRIBUNAL ………………………… DEFENDANTS/RESPONDENTS
R U L I N G
By a Notice of Motion dated 17th August 2012, this court has been requested to enter judgment against the 2nd defendant the Makueni Land Disputes Tribunal in favour of the plaintiff.
I will not grant such leave to enter judgment. The first reason is that the Land Disputes Tribunal Act was repealed. The effect of the repeal is that there is no Land Disputes Tribunal in existence.
Secondly, in my view, under Order 10 rule 4 of the Civil Procedure Rules, judgment before tendering evidence in default of entering appearance, can only be granted by the court for liquidated demands, not on land or other claims. This is a claim on land. It is not a claim for a liquidated amount. Therefore the provisions for entry of judgment cited are not applicable.
I find no merits in the application, and dismiss the same. I make no order as to costs.
Dated and delivered at Machakos this 5thday of December 2012.
………………………………………
George Dulu
Judge
In the presence of:
Mr Kasyoka holding brief for Musyoka Makau for Plaintiff/Applicant
N/A for Defendants
Mutinda – Court clerk