8.The Defendant through the firm of M/S Sonye Ondari & Co. Advocates filed a Memorandum of Appearance on 25th October 2012, together with a Statement of Defence denying all the averments in the Plaint.
9.The matter was mentioned on 19th May, 2014 to confirm whether the parties had complied with pre-trial directions given on 23rd July, 2013 when the matter came before this court for the first time. On this day both Advocates for parties were present and learned counsel for the Defendant sought more time to comply with the pre-trial directions.
10.On 15th December, 2014 the matter came up for hearing and the Advocate for the Plaintiff indicated that he was ready to proceed with two witnesses who were present in court. However, the advocate for the Plaintiff was not ready to proceed on the grounds that he had not managed to trace his client, the Applicant because the contact that he had given him was not going through. The court allowed the application for adjournment and the Defendant was ordered to pay adjournment fees and the Plaintiff’s costs before the next hearing date.
11.On 10th December, 2016 the representative of the firms representing the parties and parties themselves appeared before the registry to fix the matter for hearing. By consent the matter was fixed for hearing on 23rd May, 2016.
12.Unfortunately, on 23rd May, 2016, both the Defendant and his Advocate failed to attend court for hearing despite having been present when the hearing date was taken. The court after confirming that the Defendant and his Advocate were absent without any explanation, allowed the Plaintiff to proceed ex-parte.
13.However, in the course of the Plaintiff’s giving his testimony the court discovered that the Plaintiff’s mother, Prisca Moraa who had donated a Power of Attorney to the Plaintiff to file the suit on her behalf had died and as such he was stood down to allow for the appropriate substitution of the deceased.
14.On 26th April, 2018, the firm of M/S Sonye Ondari & Co. Advocates acting for the Defendant filed an application to cease acting for the Defendant.
15.On 22nd June, 2018 the Court allowed the application to cease acting filed by the Defendant’s former Advocate and the application for substitution of the original Plaintiff thus the current Plaintiff became the substantive party. The court further granted the Plaintiff leave to file an amended Plaint within 21 days and serve the same upon the Defendant in person.
16.The matter came up for directions on 8th October, 2018 when the court noted that the Plaintiff had served the Defendant directly. On the 26th February, 2019, the matter came up for hearing. The Court upon being satisfied that the Defendant had been properly served as per the Affidavit of Service which was on record, ordered for the matter to proceed ex-parte. The Plaintiff testified in support of the suit and called two witnesses.
17.On 23rd October, 2019 the court delivered its Judgment in favor of the Plaintiff. In the said judgment the Defendant was ordered to vacate the suit property after a period of 60 days. The Defendant was served with a Notice of entry of judgment and a copy of the decree.
18.On 3rd August, 2020, the Plaintiff/Respondent filed a Notice of Motion application seeking an order of eviction of the Defendant after the expiry of the 60 day period within which the Defendant was to render vacant possession of the suit property.
19.However, the Plaintiff’s application was placed in abeyance awaiting the hearing and determination of the Respondents application dated 29th January, 2021 seeking an order for stay of execution and leave to file his defence out of time.
20.Vide its Ruling dated 21st September 2021, the court dismissed the Defendant/Respondent’s application with costs thus giving room for this application that had been placed in abeyance to proceed.