Josvir Traders & Agencies Ltd v Geoffrey Chege Kirundi & 2 others [2012] KEHC 4414 (KLR)

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

ENVIRONMENTAL & LAND CASE 236 OF 2009

JOSHVIR TRADERS & AGENCIES LIMITED…………………………………………….PLAINTIFF

VERSUS

GEOFFREY CHEGE KIRUNDI & 2 OTHERS…………....……………………………...DEFENDANT

RULING

1. The Plaintiff’s Notice of Motion is expressed to be brought under the provisions of the then Order X Rule 20 of the Civil Procedure Rules, Section 3A of the Civil Procedure Rules and all enabling provisions of law. That Motion seeks orders that the 3rd Defendant’s defence be struck off and judgment be entered against the said 3rd Defendant as prayed in the plaint. Costs of the application are sought to be provided for.

2. The grounds relied on are that the said 3rd Defendant was served more than once with requests for particulars and notices to produce documents for inspection and it had declined to comply with such requests. That an order of the court given on 11th February, 2011 directed at the 3rd Defendant to supply particulars had also not been heeded to. That in any event the 3rd Defendant’s defence was a mere sham and a smoke screen created to obstruct the expeditious and fair trial of the suit. The said defence was further described as an abuse of the process of the court.

3. One Joseph Ng’ang’a Njuguna describing himself as a director of the Plaintiff swore the affidavit in support of the application and deposed that, amongst other things, the 3rd Defendant had declined to supply particulars and further that the Plaintiff’s investigations had shown that the purported sale and transfer of the suit land by the 1st and 2nd Defendants to the third Defendant was without any consideration and therefore a scheme to alienate the suit land and breach the agreement between the Plaintiff and the 1st and 2nd Defendants.

4. That motion was opposed and one Patrick Karanja Ngugi describing himself as the Managing Director of the 3rd Defendant swore  a Replying Affidavit stating inter alia, that the Plaintiff’s suit was one without a cause of action as the mandatory Land Control Board consent was not obtained prior to the transaction between the Plaintiff and the 1st and 2nd Defendants. The application was seen as an attempt to derail the hearing of the suit. He further swore that the particulars sought would easily be dealt with once Order II is complied with by all parties. Further, the deponent added, no order of the court was ever directed at the 3rd Defendant and hence there could not be disobedience. He stated that the defence raised matters which must only be determined at a full trial.

5. The 1st Defendant similarly swore and filed a Replying Affidavit in opposition to the motion under consideration. He deponed that the Motion was an attempt to derail the hearing of the suit while the Applicant enjoyed and continued to enjoy interim injunctive orders. He added that the Applicant had not complied with the requirement for filing of witness statements and documents and trial conference was yet to be undertaken and there were triable issues in the defence.

6. The Plaintiff/Applicant filed written submissions and highlighted the same at trial. Both counsel for the 1st and 2nd Defendants and for the 3rd Defendant made their oral submissions at the hearing of the motion and the court has considered those fully.

7. The court has thoroughly read the ruling of Justice H.M. Okwengu of the 11th February, 2011 and nowhere in it did this court find any order directed at the 3rd Defendant. On the contrary the said Ruling was candidly clear in paragraphs 6 and 7 as to whom the orders were directed. It stated,

“6. As regards the notice to produce, the same was only addressed to the 1st and 2nd Defendants--------------------

7. I do therefore order that the 1st and 2nd Defendants shall avail documents listed as nos. (4), (5), (6), (7), (8) and (9) to the Plaintiff for inspection within 14 days from the date hereof.”

That must dispose of the allegation that the 3rd Defendant has declined to comply with any orders directed at it. Consequently, I order that ground (b) of the Motion is without merit and fails.

8. Should the 3rd Defendant’s defence then be struck out as being a mere sham and a smoke screen? I should not think so. The said defence raises the issue that the Plaintiff’s suit has no cause of action as the mandatory Land Control Board consent was not first had and obtained. It denies the issues of fraudulent sale, a declaration of trust, collusion all of which are issues of fact to be properly determined at trial. The Plaintiff/Applicant did not show what prejudice it would be caused by the case being determined at a full trial. My finding is that upon consideration of all the matters of fact raised the defence cannot be described as a mere sham. It is my further finding that parties are yet to comply with Order II of the Civil Procedure Rules and they are hereby urged to do the same without more dilatory ventures so that the suit herein may be determined on merit. There is no merit found in the Notice of Motion dated 27/5/2011 and the same is hereby ordered dismissed with costs.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 30TH DAY OF MAY 2012.

P.M. MWILU

JUDGE

In the presence of:-

………………………………………………………….Advocate for Plaintiff/Applicant

………………………………………………………….Advocate for 1st and 2nd Defendant

………………………………………………………….Advocate for 3rd Defendant

………………………………………………………….Court Clerk

P.M. MWILU

JUDGE