Benjamin Mutuku Mutwa v Bernard Maitha Nthenge & another [2017] KEELC 2626 (KLR)

Citation: Benjamin Mutuku Mutwa v Bernard Maitha Nthenge & another [2017] KEELC 2626 (KLR)
Media Neutral Citation: [2017] KEELC 2626 (KLR)
Court: Environment and Land Court
Court station: Environment and Land Court at Machakos
Case number: Environment & Land Case 76 of 2015
Alternative citations: Benjamin Mutuku Mutwa v Bernard Maitha Nthenge & another [2017] eKLR
Judges: OA Angote
Judgment date: 30 June 2017
Language: English
Type: Judgment
Original source file: Download DOCX (21.4 KB)

Case action: Ruling
Court division: Environment and Land
Filing county: Machakos

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REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 76 OF 2015

BENJAMIN MUTUKU MUTWA ....................................PLAINTIFF

VERSUS

BERNARD MAITHA NTHENGE ..........................1^ST DEFENDANT

FRANCIS MUISYO MAITHA ..............................2^ND DEFENDANT

RULING

1. In the Application dated 28^th July, 2016, the 2^nd Defendant is seeking for the following orders:

a. That this Honourable Court be pleased to grant the 2^nd Defendant/Applicant leave to file Defence out of time.

b. That the draft statement of Defence annexed hereto be deemed as duly filed and served upon payment of the requisite fees.

c. That the costs of this Application be in the cause.

2. The Application is based on the grounds that the 2^nd Defendant entered appearance on 8^th April, 2015; that the 2^nd Defendant’s advocate inadvertedly omitted to file the Defence in time and that the 2^nd Defendant has a good Defence.

3. In response, the Plaintiff deponed that he does not understand why the 2^nd Defendant, who is the son of the 1^st Defendant, still insists he owns the suit land.

4. The advocates filed brief submissions and authorities which I have considered.

5. The record shows that after being served with Summons to Enter Appearance, the 2^nd Defendant, through his advocate, entered appearance on 8^th April, 2015.

6. However, it has been deponed that a Defence was not filed due to the Defendants’ advocate’s inadvertent mistake.

7. I have gone through the file and I have noted that since the matter was filed, the Plaintiff has never fixed it for pre-trial directions or for hearing.

8. Indeed, the matter has never proceeded for hearing. In the circumstances, I do not see the prejudice that the Plaintiff will suffer if the 2^nd Defendant is allowed to file the proposed Defence out of time.

9. Consequently, I allow the 2^nd Defendant’s Application dated 28^th July, 2016 in the following terms:

a. The 2^nd Defendant be and is hereby allowed to file and serve his Defence within fourteen (14) days from the date of this Ruling.

b. Each party to bear his own costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30^TH DAY OF JUNE, 2017.

O.A. ANGOTE

JUDGE

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