REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

ENVIRONMENT & LAND COURT

 LAND  CASE NO.55  OF 2015

NANCY ATIENO OMONDI.............................................................................PLAINTIFF

VERSUS

WYCLIFFE ABOK.......................... …........................................................DEFENDANT

RULING

1. INTRODUCTION

  (a)  The plaintiff, Nancy Atieno Omondi, filed the plaint dated 25th February 2015 against the Defendant,Wycliffe Abok,claiming for refund of deposits and other   expenses incurred in respect of agreements for sale of land parcels   Kisumu/Kanyawegi/9305 , 6818 and 6819, costs and interests.

  (b)      The summons dated 2nd March 2015 were issued and admittedly served on the   Defendant and he filed memorandum of appearance dated 16th March 2015 through    his advocates.

3. The plaintiff applied for judgment under Order 10 Rule 10 of the Civil Procedure Rules through her advocates letter dated 2nd April 2015.  The judgment was entered by the Deputy Registrar on the same date.  The counsel applied for certificate of  costs in lieu of taxation under Rule 68a of the Advocate Renumeration Order through    their letter dated 11th April 2015 and the same was issued on 21st April 2015 at     Kshs.224,005/=.

2.  (a)  That on the 28th April 2015, the Defendant filed the Notice of Motion dated 27th  April 2015 seeking for the interlocutory judgment  to be set aside and he be allowed     to file a defence in terms of the draft defence annexed. The application is based on three grounds, among them being that he delayed   in handing over his documents to his advocate  to prepare a defence for reasons that   he had a sick child.  The   application was listed for hearing on 24th June 2015.

  (b)   The decree was drawn and issued on 22nd May 2015 and the warrants of  attachment  dated 2nd June 2015 were issued.

  (c)  That on 10th June 2015, the Defendant filed the Notice of Motion dated 9th June  2015  seeking for stay of execution pending the hearing of the application dated 27th April 2015. The defendant's counsel appeared before the court on 11th June 2015    and   the application was certified urgent and temporary stay orders granted.

  (d) That counsel for both parties appeared before the court on 24th June 2015 and agreed to have the applications dated 27th April 2015 and 9th June 2015  consolidated and heard together through written submissions.

  (e)  The plaintiff opposed the two application through the replying affidavit of Daniel  Otieno sworn on 23rd June 2015.  The deponent among others states that the    documents they provided confirmed the Defendant had received and admitted   receiving the amount of money whose request  is sought and  if his application are to    be allowed the total amount should be deposited in an interest earning account in the   joint names of parties counsel.  The plaintiff counsel filed their submissions dated     21st July 2025 on  the 22nd July 2015 while the Defendant's counsel filed theirs dated 5th October 2015 on the same date.

3.      The issue for determination is whether the Defendant's failure to file the defence in time was excusable.  Secondly whether he has a good defence to the plaintiffs case.     Thirdly whether the orders sought should be issued and  at what terms.

4.       The court has considered the grounds on the two applications dated 27th April 2015   and 9th June 2015, the affidavit evidence filed by both parties and the written rival   submissions and come to the following finding;

 (a)   That though the Defendant blame the delay in the filing of a defence on his delay in    providing  his advocate with relevant documents due to time he took attending to his    sick child, there are no hospital documentary evidence availed to confirm that indeed   he had a sick child that he was attending too.  In any case, this counsel had   been served with notice of entry of judgment dated 13th April 2015 and letter dated  22nd April 2015 forwarding the draft decree, but it was not until 28th April 2015 when  the application dated 27th April 2015 was filed. .  Had   the hospital documents,on   the child who was reportedly sick been availed, the court would have established the   dates of the treatments to see   whether they could have explained the Defendant's engagement  and delay in filing the defence.  That reason  given by the Applicant do not appear excusable.

  (b)  That the draft defence does not in any way indicate that the Defendant denies  entering into the three sale agreements with the plaintiff or receiving the deposits mentioned. However, the Defendant at  paragraph 9 blames the plaintiff for    unilaterally pulling out of the transactions.  This effectively raises some triable issues   and is a reasonable response to the plaintiff's claim that should go to hearing.

  (c) That as the  Defendant do not appear to have had areasonable excuse in delaying to file the defence in time and so as to ensure justice to both parties, it is only fair the amount of the deposits and related expenses incurred by the plaintiff be secured in an interest earning account as the Defendant gets his day in court.  That way, in case    the plaintiff were successful in her claim, she would easily access the amount, and the Defendant would ensure he does not cause any  unnecessary delay.

6.     That for reasons set out above, the application dated 27th April 2015, and 9th June 2015 are allowed in the following terms:

(a)  That the judgment entered in default of defence on the 2nd April 2015 and all  consequential orders flowing from it, are hereby set aside on condition that the defendant, do deposit the whole principal claim of Kshs.2,566,560/= In an interest     earning account in the joint names of the parties counsel within 30  (thirty) days  in a    financial institution agreed upon by counsel.

(b) The Defendant is hereby granted leave to file and serve a statement of defence  within fifteen (15 ) days.

(c)  That should the Defendant fail to certify the condition set in (a) above, all the   others orders in (a) and (b) will automatically lapse.

  (d)  The defendant do pay the costs of the two applications.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015

Dated and delivered this 12th of November  2015

In presence of

Plaintiff/Respondent        N/A

Defendant/Applicant  N/A

Counsel   Mr Mwamu for Anyul for Applicants

M/S Alinatine for Otieno for Respondent

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015

12/11/2015

S.M. Kibunja j

Court clerk Oyugi

Parties absent

Mr Mwamu for Mr Anyul for Applicant

M/S Alinatine for Otieno for Respondent

Court:  Ruling dated and delivered in open court in presence of Mr Mwamu for Anyul  for Applicant and M/S Alinatine for Oteno for Respondent.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015