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ELCAllowed· [2017] KEELC 116 (KLR)

Jedrom Building and Civil Engineering Limited v County Government of Uasin Gishu [2017] KEELC 116 (KLR)

Environment and Land Court
24 July 2017
2,030 words in judgment
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The bottom line

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A Kenyan court awarded a company Sh4 million plus monthly income against a county government that demolished its property, ignored court orders, and never filed a defence.

What this practically means

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Executive summary

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Jedrom Building and Civil Engineering Limited sued the County Government of Uasin Gishu and applied for summary judgment for a liquidated sum of Kshs.4,000,000 being the value of its demolished property, plus loss of income of Kshs.56,000 per month, with interest and costs. The suit was filed on 30th June 2014; the defendant entered appearance on 16th July 2014 but never filed a defence. While interim injunction orders were in place, the defendant demolished the plaintiff's premises, was later cited for contempt, found guilty on 19th August 2016 and fined Kshs.500,000, which it refused to pay. The plaintiff amended its plaint on 29th September 2014 to bring in the claim for destruction of property and loss of rental income, and served the amended plaint; no defence was filed. The defendant filed no replying affidavit or grounds of opposition in compliance with Order 51 rule 14(1). Citing the Hadkinson principle and Rose Detho v Ratilal Automobiles Ltd, the court held that a contemnor may in the court's discretion be refused a hearing until the contempt is purged; the defendant was accordingly not heard and the application went unopposed. Applying Order 36 rule 1, the court found the application merited and entered summary judgment for Kshs.4,000,000 plus Kshs.56,000 per month loss of income until payment in full, with interest and costs of the suit. The judgment was delivered at Eldoret on 24th July 2017 by A. Ombwayo, Judge.

Key legal issues

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01

Entitlement to summary judgment where no defence is filed to the amended plaint

Holding

Since the defendant entered appearance on 16th July 2014 but filed no defence to the amended plaint, and filed no replying affidavit or grounds of opposition to the application, summary judgment was entered for the liquidated sum claimed plus loss of income.

Reasoning

Order 36 rule 1 of the Civil Procedure Rules, 2010 permits a plaintiff to apply for judgment where the defendant has appeared but not filed a defence in a suit for a liquidated demand. The court considered the pleadings and compliance with procedure. No defence to the amended plaint was filed and no explanation was offered. The application dated 3rd November 2014 also went unopposed, with no replying affidavit or grounds of opposition filed in compliance with Order 51 rule 14(1). The valuation of Kshs.4,000,000 was unchallenged, and the defendant's culpability for the destruction had been established in earlier contempt proceedings. The court therefore found the application merited and granted the relief sought.

p. 4
02

Whether a contemnor who has not purged contempt may be deprived of a hearing

Holding

The court applied Hadkinson and Rose Detho: refusal to hear a contemnor is discretionary, exercised sparingly, and grounded in the rule of law; the defendant, having been fined Kshs.500,000 and refusing to pay, was not heard and the application went unopposed.

Reasoning

The court held that the rule of law underpins the entire constitutional dispensation, and that a party who disobeys court orders may, in the court's discretion, be refused a hearing until the impediment is removed. The defendant had been cited, heard, found in contempt, fined Kshs.500,000 with default attachment, but refused to pay. Relying on Hadkinson v Hadkinson and Rose Detho v Ratilal Automobiles Ltd, the court endorsed the position that there is no absolute bar but that refusal to hear is discretionary and justified where disobedience impedes the course of justice. The defendant was accordingly not heard.

p. 3

Legal principles established

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  • There is no absolute legal bar to hearing a contemnor who has not purged the contempt; whether the court will hear the contemnor is discretionary and depends on the circumstances of each case.
  • Summary judgment under Order 36 rule 1 applies where a defendant has entered appearance but not filed a defence in suits for a liquidated demand.

Court orders

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  1. 1.Summary judgment entered for the plaintiff against the defendant for the liquidated sum of Kshs.4,000,000
  2. 2.Loss of income of Kshs.56,000 per month till payment in full
  3. 3.Interest on the amounts awarded
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 36 rule 1
  • Civil Procedure Rules, 2010Order 51 rule 14(1)

Cases cited (3)

  • Hadkinson v. Hadkinson
    [1952] 2 All ER 567
  • Rose Detho v. Ratilal Automobiles Ltd & 6 Others
    CA No. 304 of 2006 (171/2006 UR)
  • Burchell v. Burchell
    Case No 364/2005
Jurisdiction invoked
Original civil jurisdiction; summary judgment under Order 36 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jedrom Building and Civil Engineering Limited v County Government of Uasin Gishu [2017] KEELC 116 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/116/eng@2017-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.