George Olel Mung’au & 5 others v Joseph Situma Matafari & 10 others [2019] KEELC 216 (KLR)
The bottom line
#A Bungoma court allowed a late-filed land defence, ruling that denying someone a hearing should be a judge's last resort.
What this practically means
#Executive summary
#Key legal issues
#Whether a late defence should be expunged
The defence and Counter-Claim was admitted and deemed duly filed and served, subject to filing witness statements within 14 days
The court acknowledged that the predicament of the 2nd, 10th and 11th defendants was caused by the court itself, which had late in the day appointed pro bono counsel for the elderly 2nd defendant. Guided by Sebei District Administration v Gasyali and its Kenyan adoption in JKUAT v Oebah, the court held that denying a hearing should be the last resort, and counsel had apologized. The plaintiffs could be compensated by costs, which were left in the cause.
Whether interlocutory judgment could be entered against non-appearing defendants
No; the claim being an unliquidated injunction claim, Order 10 Rules 4 and 6 do not apply and the claims against the defaulting defendants will be formally proved at the main trial
The plaint sought only a permanent injunction over land parcels Bungoma/Kamakoiwa/5087-5092 with no liquidated claim, so interlocutory judgment provisions were inapplicable. Because the non-appearing defendants were sued jointly with defendants who had filed defences, their claims would be proved at the main trial rather than by separate formal proof.
Legal principles established
#- To deny a litigant a hearing should be the last resort of a court; irregular defences should be considered and the question is whether the plaintiff can be compensated by costs
- Interlocutory judgment under Order 10 Rules 4 and 6 CPR is unavailable where the claim is unliquidated (e.g. an injunction claim); such claims proceed by formal proof at trial
Court orders
#- 1.The 2nd, 10th and 11th defendants' defence and Counter-Claim shall not be expunged and be deemed as duly filed and served
- 2.The 2nd, 10th and 11th defendants to file and serve their witness statements and list of exhibits within 14 days and in default the defence and Counter-Claim will stand struck out
- 3.No Interlocutory Judgments shall be entered against the 3rd to 9th defendants as the claim is not liquidated; their claims to be considered together with the claim against the other defendants at the main trial
- 4.Costs shall be in the cause
- 5.Once the 2nd, 10th and 11th defendants have complied, the matter be listed for pre-trial before the Deputy Registrar after which a convenient hearing date can be taken in the next term
- Jurisdiction invoked
- Civil Procedure Rules, Order 10 Rules 4 and 6; inherent case-management powers of the court over a pending land suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Olel Mung’au & 5 others v Joseph Situma Matafari & 10 others [2019] KEELC 216 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/216/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.