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ELCOtherELC CASE NO. E151 OF 2024· [2024] KEELC 6250 (KLR)

Green & 2 others v Certified Homes Limited & 2 others (Environment & Land Case E151 of 2024) [2024] KEELC 6250 (KLR)

Environment and Land Court
19 September 2024
476 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused automatic judgment against a defendant who hadn't filed a defence, giving them 14 days instead.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua J) concerned a mention on 23 July 2024 in ELC Case No. E151 of 2024. Counsel for the 1st defendant sought 14 days to file a defence, having entered appearance but not filed one. The plaintiff opposed, contending the issue was overtaken by events because they had filed a request for judgment dated 27 May 2024 in relation to a liquidated claim. The court noted there was no controversy that the 1st defendant had not filed a defence as required under Order 7 rule 1 and Order 10 rule 4 of the Civil Procedure Rules, but held that the right to be heard is a cardinal rule of natural justice, relying on the Court of Appeal's decision in Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu and the court's own earlier decision in Isiolo Stage View Enterprises v Isiolo County Government. Finding the matter at an infancy stage, the court held that substantive justice required all parties be given an opportunity to present their case. It declined to endorse the request for judgment and instead directed the 1st defendant to file and serve a defence within 14 days, failing which judgment would be entered for the plaintiff in terms of the liquidated claim in prayers (c) and (d) of the plaint. No costs order was made. The ruling balances procedural default against the audi alteram partem rule.

Key legal issues

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01

Whether judgment should be entered against a defendant who has not filed a defence under Order 7 rule 1 and Order 10 rule 4 of the Civil Procedure Rules

Holding

The court declined to endorse the request for judgment, instead granting the 1st defendant 14 days to file and serve a defence, with conditional judgment thereafter

Reasoning

The right to be heard is a cardinal rule of natural justice. The court held that the matter was at an infancy stage and the dictates of justice would be better served by allowing all parties to present their case, balancing the plaintiff's liquidated claim against the defendant's right to be heard.

p. 2

Legal principles established

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  • The right to be heard is a cardinal rule of natural justice (audi alteram partem) and no party, however seemingly frivolous their case, may be condemned unheard
  • Courts should balance the interests of the parties and dispense substantive justice, particularly at the infancy stage of proceedings

Court orders

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  1. 1.The court declines to endorse the request for judgment
  2. 2.The 1st defendant to file and serve a statement of defence within 14 days, failure to which judgment shall be entered for the plaintiff against the 1st defendant in terms of the liquidated claim in prayers (c) and (d) of the plaint

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 rule 1
  • Civil Procedure RulesOrder 10 rule 4

Cases cited (4)

  • Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya
    [2019] eKLR
  • Catherine Muthoni Kiriungi & Another v Chairman, Land Adjudication & Settlement Oficer, Tigania East Central Division & 3 Others
    [2017] eKLR
  • Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu
    [2019] eKLR
  • Isiolo Stage View Enterprises v Isiolo County Government & 2 others
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; Civil Procedure Rules Order 7 rule 1 and Order 10 rule 4

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, "Green & 2 others v Certified Homes Limited & 2 others (Environment & Land Case E151 of 2024) [2024] KEELC 6250 (KLR)", Case Analysis (2024). ELC CASE NO. E151 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6250/eng@2024-09-19

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