Muriu v Njuhiga

c. That the plainti is not the administrator as the grant of letters issued to her was revoked on grounds that the same was obtained based on false and fraudulent means and concealment of information. d. That the defendant solely contributed to the purchase of the plots number 134 and 135 on LR NO.5805/2 –Kamiti corner phase 4 which plots I bought in the year 1998/1999 being the person in employment as my late husband had been retrenched way back in 1994. e. That the plainti does not have any legal proprietary claim or otherwise on the suit premises and the court should not allow itself to be used by the plainti to harvest where she had not sown. f. That the plainti cannot claim that she did not know that the deceased was married and did not have the capacity to contract another marriage with her or anybody else during the subsistence of the marriage with the defendant. g. That the plainti claims in the circumstances is legally untenable and should be treated with the contempt it deserved and be dismissed. 3. On June 26, 2023, the matter came up for hearing of the application when all parties were granted leave to le submissions. 4. In the replying adavit dated June 23, 2023, the Plainti averred that she was the widow of the late Daniel Njuhiga Muturi who died on June 16, 2008. It was averred that the notice of motion application and Plaint were served on October 5, 2012. It was reiterated that summons were reissued twice on 3rd December 2019 and March 4, 2020, yet even after eecting service, the defendant never bothered to enter appearance or le a defence. 5. It was argued that the applicant did not approach the court with clean hands having led the application after eleven (11) years since the commencement of this suit and has not given any good reason for not ling a defence. It was submitted that the applicant’s defence and counterclaim are contradictory and an afterthought. It was also argued that the counterclaim is scandalous, frivolous, and vexatious and an abuse of the court process. 6. I have considered the application and replying adavit. In my view, the issue that arises for determination is whether the application is merited. 7. The time for ling defence is prescribed in order 7 rule 1 which provides as follows:Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, le his defence within fourteen days after he has entered an appearance in the suit and serve it on the plainti within fourteen days from the date of ling the defence and le an adavit of service. 8. Perusal of the court records conrms that summons to enter appearance was served upon the Defendant via Whatsapp on March 8, 2021. This was evidenced by an adavit of service by Richard Macharia dated March 9, 2021. The defence therefore needed to have been led latest on March 15, 2021. This application comes more than two years after the scheduled ling of the defence and the suit has so far been stalled with several mentions to conrm compliance by the parties. 9. I am of the opinion that for the good administration of justice and case management, it is paramount for parties to le their documents within the time prescribed by the Civil Procedure Rules. The court https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20037/eng@2023-09-21 2

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is cognizant that it is duty bound to ensure timely dispensation of justice and allow each party their constitutional right to be heard. However, for the interest of justice, I will allow the application and direct that the defense and counterclaim be led within 7 days from today. There shall be no orders as to costs. 10. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER 2023. E. K. WABWOTO JUDGE In the presence of: N/A for the Plainti/Respondent. N/A for the Defendant/Applicant. Court Assistant; Caroline Nafuna. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20037/eng@2023-09-21 3

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