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ELCDismissedNot stated in judgment· [2017] KEELC 2295 (KLR)

Koome Samuel Mwiraria v Nickson Mugambi Rucha [2017] KEELC 2295 (KLR)

Environment and Land Court
11 July 2017
PNP.M. Njoroge
464 words in judgment
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The bottom line

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A Kenyan land court dismissed a defendant's attempt to reinstate his struck-out defence because he failed to respond meaningfully or even show up to prosecute his own application.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 24th April 2017 by the defendant, David John Mbaya, seeking review, variation or setting aside of orders made on 23rd March 2017 striking out his defence dated 4th January 2017, reinstatement of that defence, or in the alternative leave to file a defence out of time, with costs provided for. The application was supported by the applicant's own affidavit sworn on 24th April 2017 on grounds that the defence was struck out when the matter came up for ruling, that the plaintiff had not demonstrated prejudice, and that reinstating the defence would advance justice. On 20th June 2017 the applicant was given 14 days to respond further and file written submissions. When the matter came up on 10th July 2017 for directions, the plaintiff and his advocate Mr Frank Gitonga appeared but the defendant and his advocate did not. Mr Gitonga asked the court to dismiss the application for non-prosecution and relied on his written submissions. The court perused the plaintiff's submissions, which supported the 23rd March 2017 ruling striking out the defence, and found that the defendant had not in any meaningful way controverted the plaintiff's assertions. The application was dismissed in its entirety and costs were awarded to the plaintiff/respondent. The judgment was delivered in open court at Chuka on 11th July 2017 by P.M. Njoroge J.

Key legal issues

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Whether the application to reinstate the struck-out defence could be granted

Holding

The application was dismissed because the defendant failed to meaningfully controvert the plaintiff's submissions supporting the striking out of the defence

Reasoning

The court noted that on 10th July 2017 the plaintiff and his advocate appeared while the defendant and his advocate did not. The plaintiff's advocate asked for dismissal on the ground of non-prosecution and relied on written submissions. The court perused those submissions, found they supported the earlier striking out of the defence, and observed that the defendant had not meaningfully responded. On that basis the application was dismissed with costs to the plaintiff.

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Legal principles established

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  • An applicant seeking to set aside orders striking out a defence must meaningfully controvert the respondent's assertions; failure to do so justifies dismissal of the application

Court orders

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  1. 1.The application dated 24th April 2017 is dismissed
  2. 2.Costs are awarded to the plaintiff/respondent
Jurisdiction invoked
Inherent jurisdiction of the court to review/vary/set aside its own orders; no specific constitutional or statutory provision invoked in the judgment

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, "Koome Samuel Mwiraria v Nickson Mugambi Rucha [2017] KEELC 2295 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2295/eng@2017-07-11

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