Gathungu & another v Ministry of Lands & Physical Planning & another [2022] KEHC 138 (KLR)

Gathungu & another v Ministry of Lands & Physical Planning & another (Commercial Civil Case E817 of 2021) [2022] KEHC 138 (KLR) (Commercial and Tax) (27 January 2022) (Ruling)

Neutral citation number: [2022] KEHC 138 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial Civil Case E817 of 2021

JN Mulwa, J

January 27, 2022

Between

Isaac Wanjohi Gathungu

1st Plaintiff

Isabella Nyaguthii Wanjohi

2nd Plaintiff

and

Ministry of Lands & Physical Planning

1st Defendant

National Land Commission

2nd Defendant

Ruling

1. The Applicant, by their Notice of Motion application dated 29/10/2021 seeks that Judgment be entered against the 1st Defendant, Ministry of Lands and Physical Planning for failure to enter appearance and/or file a defence despite having been served with summons to enter appearance as by the law provided – Order 5 Rule 9 of the Civil Procedure Rules 2010 (CPR).

2. The 1st Defendant is a Government Ministry. For judgment to be entered against a government body in default of appearance or defence, leave must be obtained from the court.

3. Order 10 Rule 8 of Civil Procedure Rules states:“No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return date”

4. In the Supporting Affidavit sworn by the process server, one Loise Njoroge, she served sermons to enter appearance to both defendants on the 6/10/2021. They both signed and stamped at the face of the summons, to signify service upon them, by their legal officers.

5. I am satisfied that proper service was thus effected upon the 1st Defendant at its offices situated at Ardhi House, off Ngong Road Nairobi. The 1st Defendants stamp is appended at the face of the summons and dated 6/10/2021.

6. On the above basis, I allow prayer No. 1 of the application dated 29/10/2021.

DATED AND SIGNED THIS 27THDAY OF JANUARY 2022HON. J. N. MULWAJUDGE