John Gicheru Thuita, Ceaser Muchiri, Jackson Kariuki Kingori, James Maina Mbuthia, John Kariuki Kingori, George Thuku Wambugu & Paul Ndiritu Mwai v Agriculture, Fisheries & Food Authority & Attorney General [2018] KEHC 516 (KLR)

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 2nd 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.

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 2nd 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 2nd 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 2nd Defendant save for the grounds of opposition dated 13th 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