Joseph Mwangangi Muunda v Stephen Ndoo Muindi & Anna Muindi Muthamo [2018] KEELC 4324 (KLR)

REPUBLIC  OF KENYA

IN THE  ENVIRONMENT AND LANDS COURT  AT MAKUENI

ELC  NO. 151 OF 2017

FORMERLY MACHAKOS  59 OF  2012

JOSEPH  MWANGANGI  MUUNDA  ---------- PLAINTIFF/RESPONDENT

VERSUS

STEPHEN  NDOO MUINDI -----------------1ST DEFENDANT/APPLICANT

ANNA MUINDI MUTHAMO ----------------2ND DEFENDANT/APPLICANT

RULING

1) There is  before me  a notice of  motion  application  expressed  to be brought   under  order  10  Rules 9  and  11 of the Civil Procedure  Rules, Section 1A and 1B of the Civil Procedure Act for orders:-

1. That  the interlocutory judgement  entered herein against the Defendants  be set aside.

2. That  this  honourable  court be pleased to give directions regarding  the hearing of this suit.

3. That  cost of this application be provided  for.

2) The  application is  predicated on the grounds on its face and is supported by the  affidavit of  Stephen  Ndoo Muindi, the first defendant/applicant, sworn on the 28th June, 2013 and is opposed by the replying affidavit  of Joseph Mwangangi   Muunda,  the plaintiff/applicant. The same was sworn on the 8th October, 2013 and was filed in court on the 23rd October, 2013.

3) By the time of writing this ruling, only the respondents had  filed their  submissions.   Their  submissions were that the principles of setting aside interlocutory judgement are well settled. The respondent’s counsel  referred the court to the case  of Mwalia Vs Kenya Bureau of Standards [2001] EA at page155 where Ringera  J as he  then stated  thus;

“I think it is now convenient to state the law applicable to applications to set aside  judgment in default  of appearance of defence.  It is indisputable that the discretion of the court is unfettered except that if the judgement is set aside it must be done on terms that are just.  That is what order IXA Rule 10 itself  ordains.  It reads: ‘where judgment has been entered  under this order the  court may set aside or vary such judgment and any consequential decree or  order upon such  terms  as  are  just’”

4) The  counsel  further  referred   the court to the case of Patel Vs EA Cargo   Handling  Service [1974]EA 75  where  Duffus P held as follows;

“The  main  concern of the court   is to do justice to the parties, and the court will not impose conditions on itself  to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgment as is   the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits.  In this respect defence  on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan J put  it a triable issue, that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

5) The  counsel went on to state that the  aforementioned case was cited with approval in Jackson Biegon Vs Charles Too and   3  others [2005] eKLR and    submitted that  the applicant’s counsel  is  not  properly on record and as such lacks locus to bring  this application. The counsel  pointed out that the advocate  who is on record is  M/S Mwania Mbithi & Company Advocates and that there was no notice of change of advocates.  The counsel  cited order 9 rule 7 of  the  Civil Procedure Rules which provide the procedure of  change of advocate in instance where judgement  has been  passed. The  counsel  submitted that the applicant’s counsel having failed to seek court’s leave  to come on record, the application herein is incompetent and ought to be dismissed.

6) Having  read the application, the supporting  and the  replying  affidavits,  I am of the view that the issue for determination is whether or not the orders ought   in the  application should be granted. At the outset, I wish to state that I fully  associate myself with the holdings in the authorities that were  referred to me by the respondent’s counsel.The respondent’s   contends that the application is incompetent  since  there is a judgement that has been passed.  From the record herein, Mwania Mbithi and Company Advocates are on record for  the applicant having obtained leave  on the 20th March, 2013. On the 28th May, 2013 Mwania Mbithi’s law firm was granted 30 days within which to file the application to set aside the Exparte judgement.

7) On the  24th May, 2013 R.A Onchuru and Company Advocates filed a notice of change of Advocate  the same being  dated the 23rd May, 2013.  This was followed  by the application herein. Taking into  consideration  that the Exparte judgement  was yet  to be set aside, it was  incumbent upon R.A Onchuru & Co.  Advocates to seek court’s leave to come on record before  filing the application as was correctly submitted by the  respondents’  counsel.  I am mindful of the provisions of Article 159(2) (d) of the  Constitution that  requires justice shall be administered without undue regard to procedural  technicalities but in my view, to ignore procedure  herein would  amount to assisting  the applicant  who is out to delay the course of justice (see Shah Vs Mbogo [1967] EA 116)

8) In a nutshell, I am  in agreement with the respondents’ counsel  that the application lacks  merit and in the circumstances, the prayers sought  cannot be granted. I hereby proceed to dismiss it with costs to the respondent.

Dated, signed and delivered atMakueni on19thDay ofFebruary,2018.

MBOGO C.G

JUDGE

In the presence of;

Ms.  Kyalo holding  brief  for Mr. Mulei for  the plaintiff/Respondent

R.A Ochuru & Co. Advocates for the Defendants Absent

1st  Defendant   present

Mr. Kwemboi Court Assistant

MBOGO C.G

JUDGE

19/2/2018