Titus Mutunga Maweu v Erastus Mualuko Sivalu,Ann Nzula Sivalu & Gideon Nzioki [2019] KEELC 4554 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC CASE NO. 347  OF 2017

TITUS  MUTUNGA MAWEU....................................PLAINTIFF

VERSUS

ERASTUS MUALUKO SIVALU.....................1ST DEFENDANT

ANN NZULA SIVALU.....................................2ND DEFENDANT

GIDEON  NZIOKI...........................................3RD DEFENDANT

RULING

1) What is before  court for ruling  is the 2nd and 3rd  Defendants/Applicants notice of motion  application dated 7th May, 2018 and filed in court on even date for orders that;

1. Spent

2. That the 2nd and 3rd Defendants/Applicants be granted leave to file their memorandum of appearance and defence out of time.

3. That the annexed draft  memorandum of appearance, defence and replying affidavits to the notice of motion dated 4/10/2017 be deemed  to have been filed within statutory time upon payment of requisite fees.

4. Costs be in the cause.

2) The application is predicated   on the grounds on its face and is supported by the affidavit of Ann Nzula  Sivalu, the second Defendant/Applicant  herein, sworn at Machakos  on 7th May, 2018.

3) The Plaintiff/Respondent has opposed  the application  vide his supporting  affidavit  sworn  at Machakos  on the  14th May, 2018 and filed in court on 15th May, 2018.

4) The second Defendant/Applicant has deposed in paragraphs  6 and 7 of her affidavit that  they have good defence which  raises  triable issues as well as  a comprehensive replying  affidavit to the  notice of motion dated  4/10/2017.  That the Plaintiff/Respondent will not suffer any prejudice if the application is allowed.

5) Justus M. Mutia, the counsel who has the conduct  of the case herein on behalf of the  Plaintiff, has deposed in paragraphs 3 and 12 of his replying  affidavit  that the application is misplaced  and an abuse of the court  process.  That part of the prayer 3 is misplaced and an abuse of the court process.  That it is also misplaced since no request for judgement has been made and pretrial conference is yet to be done.

6) By the time of writing this ruling, it is only the counsel for the 2nd  and the 3rd Defendants/Applicants  who had filed  his submissions.  The counsel   has cited the case of Stephen Wanyoike  Kinuthia  Vs Cecilia  Wambui  Kariuki & 2 others  [2017] eKLR”where Okong’o, J stated  thus;

“I have also noted  from the plaint filed by the Plaintiff that the reliefs sought  against the Defendants would have far reaching   consequences upon their livelihood and as such they should be granted an opportunity to put forward whatever defence they have to the claim before the orders  sought  are granted.  Finally there is no evidence that the Plaintiff would suffer any prejudice which cannot be compensated in costs if the Defendants are allowed to defend the suit.”

7) The counsel was of the view  that since amongst the prayers sought in the plaint  is one of a permanent injunction  against the Defendant from entering  into and  the use of the suit property, the same would have far reaching  consequences on them. The counsel went on to submit that the Plaintiff/Respondent  is silent on whether he stands to suffer  any prejudice should the application be allowed. On my part, I concur  with observation of Okong’o, J  in the aforementioned case of Stephen Wainyoka Kinuthia  V Cecilia Wambui Kariukiand  hold that the application before me  has merits.  In the circumstances  I will  allow the application same and direct the 2nd  and the 3rd  Defendants/Applicants to file and serve their statement of defence, bundle of documents  and witnesses statements as well as replying  affidavits to the notice of motion application dated  4th October, 2017 within 21 days from the date hereof.  The Plaintiff/Respondent will have cost of the application.

SIGNED, DATED AND DELIVERED AT MAKUENI  THIS 19TH DAY OF  FEBRUARY, 2019

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

Mr.  Olieti holding  for Mr. Mutia  for  the Plaintiff

Mr.  Masako holding brief for Mr.Mulei for the 2nd and 3rd Defendant.

Ms Nzioka Court Assistant

MBOGO C.G, JUDGE

19/2/2019