[2020] KEELC 3313 (KLR)
The court found that the defendant failed to comply with its order to file submissions in support of his application to set aside the ex-parte judgment. There was no evidence of ongoing out of court settlement after the suit was filed, and the defendant had been duly served with summons but neglected to enter...
Source-derived case information.
- Citation
- [2020] KEELC 3313 (KLR)
- Parties
- Plaintiff: Wanyonyi Chekelie; Defendant: John Masai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 80 of 2017
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Ex Parte Judgment, Failure to Prosecute, Out of Court Settlement, Service of Summons
- 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
Wanyonyi Chekelie
Plaintiff
John Masai
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex-parte judgment and consequential orders should be set aside.
- 2 Whether the defendant should be granted leave to file a defence out of time.
- 3 Whether the defendant's failure to file submissions amounts to want of prosecution.
Ratio Decidendi
The court found that the defendant failed to comply with its order to file submissions in support of his application to set aside the ex-parte judgment. There was no evidence of ongoing out of court settlement after the suit was filed, and the defendant had been duly served with summons but neglected to enter appearance or file a defence. The court held that the defendant's failure to prosecute the application, specifically by not filing submissions as directed, justified dismissal of the application for want of prosecution. Consequently, the application to set aside the ex-parte judgment was dismissed with costs to the plaintiff.
Court Disposition
application dismissed for want of prosecution
Orders
- The defendant's application dated 14/8/2019 is dismissed for want of prosecution.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 80 OF 2017
WANYONYI CHEKELIE..................................................................PLAINTIFF
VERSUS
JOHN MASAI..................................................................................DEFENDANT
RULING
1. The application dated 14/8/2019 and filed in court on the same date has been brought by the defendant who seeks the following orders:
1. That the ex-parte judgment entered herein together with all the consequential orders be set aside.
2. That the defendant/applicant be granted leave to file his defence within such time as to be prescribed by the court.
3. spent
4. Costs be provided for.
2. The application is brought under the provisions of Sections 1A and 1B of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules 2010.
3. The application is premised on the grounds stated on its face and on the annexed affidavit of the defendant. Essentially the grounds relied upon by the applicant are inter alia that the defendant and the plaintiff were engaged in and out of court settlement after service of the summons to enter appearance and that the defendant has a good defence to this suit.
4. Other grounds in support of the application are contained in the affidavit annexed to the said application sworn by the defendant, who avers inter alia that even before the filing of the suit the plaintiff had filed a complaint with the village elders of the alleged trespass and the elders had encouraged an out of court settlement; that after the service of summons on the defendant the plaintiff was summoned by the elders and it was recommended that survey should be carried out to determine if there was any trespass.
5. The plaintiff filed a replying affidavit filed on 11/10/2019. He depones that the application seeks to vary/set aside the judgment of the court delivered 8/7/2019; that the defendant has confirmed that he was served with summons to enter appearance and the court was satisfied at the hearing that the defendant had been served; that the defendant wilfully neglected to enter any appearance or file defence; that the parties have never been engaged in an out of court settlement after the filing of the suit; that negotiations took place prior to the suit in 2016; that no good grounds sufficient to warrant the setting aside of the judgment have been advanced; that the defendant is only intent on delaying this matter; that the defendant was served with hearing notices despite failure to enter appearance and that the defendant is guilty of indolence and does not deserve equity.
6. On 14/10/2019 this court ordered the parties to file submissions on the application; the applicant was to file his submissions within 14 days and serve; the respondent was to reply to those submissions within 14 days of service. By 14/11/2019 while the matter came up for mention to confirm filing of submissions the defendant/applicant had not filed any submissions. He was granted 7 more days to file his submissions. However by the date of writing this ruling the defendant had not filed his submissions.
7. In view of that non-compliance with the court order regarding submissions, and there being no other manner provided for the disposal of the instant application, I find that the defendant has failed to prosecute his application and I hereby dismiss it with costs for want of prosecution.
Dated, signed and delivered at Kitale on this 3rdday of March, 2020.
MWANGI NJOROGE
JUDGE
3/3/2020
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Karani for plaintiff/respondent
Ms. Temba for defendant/applicant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
3/3/2020