Environment & Land Case 88 of 2017

Case Metadata
Case Number:	Environment & Land Case 88 of 2017
Parties:	Ombongi v Simiyu & another
Date Delivered:	26 Jan 2023
Case Class:
Court:	Environment and Land Court at Nairobi
Case Action:	Ruling
Judge(s):	Lucy Ngima Mbugua
Citation:	Ombongi v Simiyu & another (Environment & Land Case 88 of 2017) [2023] KEELC 340 (KLR) (26 January 2023) (Ruling)
Advocates:	Ndete holding brief for Nyaudi for the Plaintiff, Nyoike for the 1st Defendant
Court Division:	Environment and Land
County:	Nairobi
Advocates:	Ndete holding brief for Nyaudi for the Plaintiff, Nyoike for the 1st Defendant
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Ombongi v Simiyu & another (Environment & Land Case 88 of 2017) [2023] KEELC 340 (KLR) (26 January 2023) (Ruling)

Neutral citation: [2023] KEELC 340 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 88 of 2017

LN Mbugua, J

January 26, 2023

Between

Joel Motaroki Ombongi

Plaintiff

and

Chami Simiyu

1^st Defendant

Embakasi Ranching Company Limited

2^nd Defendant

Ruling

1.This ruling relates to an oral application made by counsel for the plaintiff on October 3, 2022 after the closure of their case where the court was urged to consider the matter as an undefended claim and proceed to give a date for judgment.

2.Counsel for 1^st defendant opposed the said application averring that 1^st defendant was never served with summons to enter appearance. In rejoinder, counsel for the plaintiff averred that summons were served way back in February 2017 and that the 1^st defendant had failed to file any defence but instead just focused on interlocutory applications.

3.I have considered the application, the rejoinder thereof as well as the litigation history.

4.Firstly, I find that the 1^st defendant has been represented in court right from the infancy stage of the trial on June 12, 2017. To this end, the 1^st defendant has actively been involved in the litigation journey of the suit for the last five years, so much so that on 11.5.2021, the matter was fixed for hearing on February 14, 2022 in the presence of counsel for 1^st defendant. The question begging for an answer is; why was the 1^st defendant not raising any query when the matter was being fixed for hearing of the main suit that time?.

5.It is also noted that the 1^st defendant has never raised the issue of service of summons until October 3, 2022, nor did they seek leave to defend the suit, and there are no witness statements or documents filed in support of his case.

6.The 1st defendant is raising the issue of service of summons rather late in the day. I find that whereas service of summons is a vital step in initiating litigation (see Lee Mwathi Kimani v National Social Security Fund & Another) 2014 eKLR, the issue of summons was not a subject of contest during the lifespan of this suit.

7.In the case of Industrial and Commercial Development Corporation V Sum Model Industries Limited [2007] eKLR, the court of Appeal stated that:“The appellant without any hesitation or protestation filed a written statement of defence and participated in the proceedings of the case without any complaint. And whether or not the summons to enter appearance violated order IV rules (3) and (4) of the Civil Procedure Rules is neither here or there as the summons was not made part of the record of appeal.”

8.It is noted that when the matter was called out in the virtual platform on the date of the hearing on October 3, 2022, counsel for the 1^st defendant informed the court that “we are ready”, thus the matter was allocated time at 10.30 am in open court. However, at the scheduled time, the 1^st defendant was absent and his counsel knew not of his whereabouts. In a short ruling delivered just before the trial, the court observed that no good reasons had been advanced as to why the 1^st defendant was absent in court. This is another tell tale sign that the 1^st defendant has not been vigilant in the prosecution of his case.

9.The right to be heard has always been a well protected right in our Constitution and is also the cornerstone of the rule of law – see Wachira Karani vs Bildad Wachira [2016] eKLR. However, this is a case whereby the 1^st defendant has squandered that right. In that regard, I do allow the application made to the effect that this is an undefended claim. The court will therefore proceed to give a date for judgment but parties shall be given an opportunity to file their submissions.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26^TH DAY OF JANUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Ndete holding brief for Nyaudi for PlaintiffNyoike for 1^st DefendantCourt Assistant: Eddel

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Environment & Land Case 88 of 2017

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