Sule v Otieno & 3 others (Environment & Land Case 30 of 2017) [2023] KEELC 22360 (KLR) (14 December 2023) (Ruling) Neutral citation: [2023] KEELC 22360 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISUMU ENVIRONMENT & LAND CASE 30 OF 2017 E ASATI, J DECEMBER 14, 2023 IN THE MATTER OF LAND PARCEL NO. KISUMU/WATHOREGO/916 AND RESULTANT SUBDIVISION INTO LR NO. KISUMU/WATHOREGO/5155,5156 AND 5157 AND IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF ORDER 37 RULE 7(1) CIVIL PROCEDURE RULES BETWEEN PEREZ ATIENO SULE ............................................................................... PLAINTIFF AND SELINA AOKO OTIENO ................................................................. 1ST DEFENDANT KEVIN KEEGAN OTIENO ............................................................ 2ND DEFENDANT MARY AKOTH OTIENO ............................................................... 3RD DEFENDANT RAYMOND ODUOR MUHULA ................................................... 4TH DEFENDANT RULING 1. This ruling is in respect of the Notice of Motion application dated 30/1/2023 brought by the 2nd and 3rd Defendants. The substantive prayer in the application is prayer No. (d) which is a prayer for setting https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22360/eng@2023-12-14 1
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aside of the judgement and for the applicants to be allowed to le and serve replying adavit to the amended originating summons. 2. The grounds upon which the application is brought are that the applicants have a good and plausible response against the Plainti’s claim as set out in the amended originating summons. That the applicants were not served with either the originating summons, amended originating summons or any notice to appear in court. That they came to know about the case when they were served with a letter from Otieno, Yogo, Ojuro & Co. Advocates to attend court on the judgement date. That the applicants should be given a chance to be heard in line with the rules of natural justice. That the plainti will not suer prejudice if the application is allowed. 3. The application was supported by the averments in the Supporting Adavit sworn by the applicants jointly on 30/1/2023 and the response to replying adavit sworn on 27/3/2023 by the applicants jointly. 4. The application was opposed vide the contents of the replying adavit sworn on 5th february 2023 by the plainti. The plainti’s case is that the applicants were served with the originating summons whereupon they instructed the rm of Otieno, Yogo, Ojuro & Co Advocates who entered appearance on their behalf and on behalf of the 1st defendant and represented them. that the 1st defendant is the mother of the applicants. That the application is fatally defective. 5. Though the applicants describe the judgement as default judgement, the record shows that the applicants participated in the proceedings that lead to the judgement. They were competently represented by counsel throughout the proceedings. The judgement was not ex parte or in default of appearance and defence in so far as it concerns the present applicants. The record also shows that the applicants presented their defence to the Plainti’s claim vide the detailed replying adavit sworn by the 1st defendant on their behalf. 6. No sucient grounds have been disclosed for setting aside the judgement. Application is hereby dismissed. costs to the plainti. Orders accordingly. RULING, DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 14TH DAY OF DECEMBER 2023 THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI, JUDGE. In the presence of: No appearance for the Plainti/Respondent. 2nd Respondent/Applicant present in person. 3rd Respondent/Applicant present in person. Odeny for the 4th Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22360/eng@2023-12-14 2
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