Giriama Central Associates & Property Management Limited v Ayub Shero Baluchiomar Mohsen, Ahmed Mohamed & Mwakasa Limited [2019] KEELC 4700 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

CIVIL SUIT NO. 216 OF 2012

GIRIAMA CENTRAL ASSOCIATES & PROPERTY                                                  .

MANAGEMENT LIMITED........................................................................PLAINTIFF

-VERSUS-

1. AYUB SHERO BALUCHI

2. OMAR MOHSEN AHMED MOHAMED (Name struck out by Order of 2. 4.2014)

3. MWAKASA LIMITED........................................................................DEFENDANTS

RULING

1.  This ruling is in respect of a preliminary objection raised by the plaintiff on whether or not the 1st defendant has a defence on record and therefore entitled to participate in the hearing by calling witnesses.  The basis for the objection is that during the 1st defendant’s testimony de benese, the 1st defendant disowned his statement of defence filed by Ananda & Co advocates on 24th November 2015.

2.  The preliminary objection is opposed by Mr Kimani for the 1st defendant.  Mr Kimani submitted that the plaintiff was drawing inference that the pleadings have been struck out yet the taking of evidence on February 2017 and dismissal of the 1st defendant’s application on 11th December 2017 are not synonymous with striking out pleadings.  That the prayers sought are a direct affront to the provisions of article 50 of the Constitution.

3.  I have taken into consideration the objection raised and the submissions rendered in support of and against it.  This matter is yet to be fully heard as only the 1st defendant has given his testimony.  In the ruling rendered on 11th December 2017, Komingoi J while dismissing the application seeking to expunge the contentious statement of 1st defendant’s defence stated thus at paragraph 9 of her ruling:

“Having filed the notice of change of advocates means that the present advocates took over the matter from Ms Ananda & Co advocates.”

4.  My understanding of this phase is that the documents filed by Ananda & Co advocates were deemed to have been properly on record.  This Court was not made aware of any appeal filed against this decision.  Therefore the statement made by the 1st defendant during his testimony disowning such a defence can only be determined at the final stage i.e. at judgment writing on whether the 1st defendant has raised a reasonable defence to the plaintiff’s claim.

5.  It is thus premature for the plaintiff to ask the Court to make such a determination at this stage before all the parties to the suit have presented their evidence.  Consequently on the basis that there is a defence on record, the 1st defendant cannot be barred from calling witnesses in support of his case.  Consequently I find the objection raised to be premature, devoid of merit and is hereby dismissed with costs ordered in the cause.

Dated, signed & delivered at Mombasa this 15th February 2019

A. OMOLLO

JUDGE