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Original judgment

John Gicheru Thuita & 6 others v Agriculture, Fisheries & Food Authority & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL DIVISION HIGH COURT CIVIL CASE NO. 230 OF 2014 JOHN GICHERU THUITA.............1ST PLAINTIFF/APPLICANT CEASER MUCHIRI........................2ND PLAINTIFF/APPLICANT JACKSON KARIUKI KINGORI..3RD PLAINTIFF/APPLICANT JAMES MAINA MBUTHIA..........4TH PLAINTIFF/APPLICANT JOHN KARIUKI KINGORI..........5TH PLAINTIFF/APPLICANT GEORGE THUKU WAMBUGU...6TH PLAINTIFF/APPLICANT PAUL NDIRITU MWAI.................7TH PLAINTIFF/APPLICANT VERSUS AGRICULTURE, FISHERIES & FOOD AUTHORITY..........1ST DEFENDANT/RESPONDENT ATTORNEY GENERAL.......2ND DEFENDANT/RESPONDENT RULING 1. The application dated 30th May, 2017 seeks orders that judgment be entered for the Plaintiff as against the 2nd Defendant as prayed for in the plaint. 2. It is stated in the grounds and the affidavit in support of the application that the 2 nd Defendant was served with Summons to Enter Appearance, Amended Plaint and Verifying Affidavit together with the accompanying documents on 20th March, 2015. That the 2nd Defendant has failed to Enter Appearance or file a Defence. That the 2nd Defendant has continued to receive documents pertaining to this case but continues neglecting filing its documents, thereby causing delay in the suit. 3. The 1st Defendant did not oppose the application.

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4. The application is opposed by the 2nd Defendant. The 2nd Defendant filed the grounds of opposition dated 13th June, 2017 which states as follows: 1. That the failure to file a defence is not intentional on the part of the 2nd Defendant. 2. That the application is therefore frivolous, vexatious and an abuse of the court process. 5. I have considered the application, the response to the same and the submissions made by the respective counsels for the parties. 6. As at the date of the hearing of the application at hand, no defence or draft thereof was on the record. No replying affidavit was filed to explain the delay. The court has therefore not been told why there is no statement of defence on record. The 2 nd Defendant’s written submissions seem to be giving the reasons for the delay. However, submissions are not evidence. 7. Although it is stated in the 2 nd Defendant’s written submissions that the Memorandum of Appearance and the Statement of Defence were attached thereof, no such documents were attached. Indeed there are no such documents in the court file by the 2 nd Defendant save for the grounds of opposition dated 13 th June, 2017 and a Memorandum of Appearance. 8. In the case at hand, there are absolutely no reasons given why this court should exercise it’s discretion in favour of the 2nd Defendant. Consequently, I allow the application with costs. Date, signed and delivered at Nairobi this 14th day of Nov., 2018 B. THURANIRA JADEN JUDGE

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