Leonard Njiru Njogu v Obed Gachoki Difatha & Simon Mwaniki Gachoki [2016] KEHC 6231 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC CASE NO. 201 OF 2013

LEONARD NJIRU NJOGU…………....………..…..............…PLAINTIFF

VERSUS

OBED GACHOKI DIFATHA……………….....….....…..1ST DEFENDANT

SIMON MWANIKI GACHOKI……………......................2ND DEFENDANT

ORDER

This suit was originally filed at the High Court in Embu on 7th October 2011 before being transferred to this Court on 7th November 2012.

When it was mentioned before me on 26th October 2015, Mr. Kagio advocate for the plaintiff/applicant informed me that what was pending was the application dated 16th March 2012 and I directed that the defendants be served for hearing on 1st December 2015.   The application itself seeks the dismissal of the defence for disclosing no proper defence in law and for being frivolous, scandalous and vexatious and an abuse of the Court process.

On 1st December 2015 Mr. Kagio advocate for the plaintiff/applicant informed me that he had served both defendants/respondents with the said application and urged me to rely on the plaintiff/applicant’s supporting affidavit and further affidavit dated 3rd November 2015.   I therefore fixed the ruling date for that application for 16th March 2016.

However, upon perusal of the Court file, I have found that there is no defence in the file.  It may have fallen out of the file either in our registry or during the transfer of this file from Embu.  In the absence of the defence, I am un-able to decide whether it is indeed frivolous, scandalous, vexatious or an abuse of the Court process as alleged.

I therefore direct that the Deputy Registrar writes to defendants/respondents to avail a copy of the defence for my further necessary action.  Counsel for the plaintiff/applicant could also make a copy available to the Court.

This case will be mentioned on 4th April 2016 for further orders as to ruling date once the defence is availed.

B.N. OLAO

JUDGE

16TH MARCH, 2016

Order read to Mr. Kagio Advocate for the Plaintiff/Applicant in open Court this 16th day of March 2016.

Further mention on 4th April 2016.

Mention notice to issue.

B.N. OLAO

JUDGE

16TH MARCH, 2016