Case ID:178557

Kiambu Murutani Company Limited v Michael Njuguna, Equity Bank Limited & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 942 of 2013

Parties:

Kiambu Murutani Company Limited v Michael Njuguna, Equity Bank Limited & Antique Auctions

Date Delivered:

24 Jun 2021

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Loice Chepkemoi Komingoi

Citation:

Kiambu Murutani Company Limited v Michael Njuguna, Equity Bank Limited & another [2021] eKLR

Advocates:

Mr. Njeru for the Plaintiff

Mr. Mutanda for Mr. Gitonga for the 1st Defendant

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Mr. Njeru for the Plaintiff

Mr. Mutanda for Mr. Gitonga for the 1st Defendant

History Advocates:

Both Parties Represented

Case Outcome:

Notice of motion dismissed

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

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO. 942 OF 2013

KIAMBU MURUTANI COMPANY LIMITED................................PLAINTIFF/RESPONDENT

VERSUS

MICHAEL NJUGUNA.................................................................1

ST

DEFENDANT/APPLICANT

EQUITY BANK LIMITED.....................................................................................2

ND

DEFENANT

ANTIQUE AUCTIONS............................................................................................3

RD

DEFENANT

RULING

1.

This is the Notice of Motion dated 2

nd

February 2021 brought under order 12 rule 2, 7 of the Civil Procedure Rules, 2010, section 1, 3A of the Civil Procedure Act, Section 63 (e) of the Civil Procedure Act the inherent powers of the Court and all enabling provisions of the law.

2.

It seeks orders:-

1. Spent.

2. Spent.

3. Spent.

4. Spent.

5. That the judgment delivered by Honourable Justice L. Komingoi be set aside.

6. That the defendant be granted leave to cross-examine the Plaintiff’s witnesses and to tender evidence in support of his defence.

7. That the court be pleased to impose such conditions as it may deem fit in the circumstances.

8. That costs be reserved.

9. Costs be provided for.

3.

The grounds are on the face of the application and are set out in paragraphs 1 to 8.

4.

The application is supported by the affidavit of Michael Njuguna, the defendant/applicant herein sworn on the 2

nd

February 2021.

5.

The application is opposed. There is a replying affidavit sworn by Anthony Kamuna, Chairman of the Plaintiff/Respondent on the 19

th

February 2021.

6.

There is also the Notice of Motion dated 3

rd

March 2021, brought under order 22 rule 29 order 51 rule 1 of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law.

7.

It seeks orders:-

1. That the plaintiff/applicant be authorized to appoint a licensed Auctioneer to evict and remove the 1

st

defendant, his tenants and their families or any person claiming through them from Title Number Kiambu Municipality Block 1/57.

2. That this honourable court be pleased to order the Officer Commanding Police Station (OCS) Kiambu Police Station to provide security during the eviction exercise.

3. That the 1

st

defendant be condemned to bear the plaintiff’s/applicant’s costs and the Auctioneers costs of carrying out the eviction exercise.

8.

The grounds are on the face of the application and are set out in paragraphs 1 to 6.

9.

The application is supported by the affidavit of Anthony Kamuna Chairman, of the Plaintiff/Applicant sworn on the 3

rd

March 2021.

10.

The application is oppose. There is a replying affidavit sworn by Michael Njuguna the defendant herein sworn on the 15

th

April 2021.

11.

On the 11

th

March 2021, the court directed that the two applications be heard together. They were canvassed by oral submissions on the 20

th

April 2021.

12.

I have considered the Notice of Motion dated 2

nd

February 2021. It seeks to set aside this court’s judgment delivered on 10

th

December 2020.

Order 12 rule 2

of the Civil Procedure Rules provides that:-

“ 2. If on the day fixed for hearing, after the suit has been called on or hearing outside the court, only the plaintiff attends, if the court is attends satisfied:-

(a) that notice of hearing was duly served, it may proceed ex parte;

(b) that notice of hearing was not duly served, it shall direct a second notice to be served; or

(c) that notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing.”

Order 12 rule 7

of the Civil Procedure Rules provides that:-

“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

13.

It is the defendant’s/applicant’s case that his previous advocates mismanaged the case.

14.

I have gone through the court record. On the 8

th

April 2019 PW1, Anthony Kamuna the Chairman of the Plaintiff testified. He was cross examined by Mr. Karei who was acting for the 2

nd

and 3

rd

defenants. On that date the plaintiff closed its case. Mr. Karei then sought time to avail the defence witnesses.

15.

On the 10

th

July 2019, Mr. Thuo attended court and told the court he had been instructed to appear for the 1

st

defendant.

16.

On the 3

rd

February 2020, in the presence of Mr. Njeru for the plaintiff and Mr. Thuo for the 1

st

defendant the following consent was recorded:-

“By consent: (1) the plaintiff be allowed to re open its case and to file additional documents within 14 days.

(2) The 1

st

defendant be allowed to file his additional documents if need be.

(3) The 1

st

defendant be allowed to cross examine the plaintiff’s witness.

(4) The status quo be maintained. The suit property is still registered in the 1

st

defendant’s name who should not dispose of the suit property.

(5) The 1

st

defendant be granted leave to amend defence and/or witness statements if need be within 14 days upon service”.

17.

The said consent was adopted by the court and matter fixed for hearing on 13

th

July 2020.

18.

On the 13

th

July 2020, neither the 1

st

defendant nor his counsel was present. There was no explanation for their absence. As the date had been taken in the presence of both counsel this court directed that the matter proceeds.

19.

The plaintiff then, recalled P.W.1 Antony Kamuna who produced the additional documents. The plaintiff then closed its case. Consequently, the 1

st

defendant’s case was closed and the plaintiff was given time to put in final submissions.

20.

It is therefore not true that the 1

st

defendant was not aware of the proceedings herein. I have gone through his supporting affidavit and I find no plausible reasons to warrant this court to exercise discretion in his favour.

21.

Upon learning that judgment had been delivered in favour of the plaintiff, he filed a Notice of Appeal dated 17

th

December 2020. The same has not been withdrawn.

22.

In conclusion, I find no merit in the Notice of Motion dated 2

nd

February 2021 and the same is dismissed with costs to the plaintiff/respondent.

23.

I have also considered the plaintiff’s Notice of Motion dated 3

rd

march 2021 and the replying affidavit sworn by Michael Njuguna the defendant/respondent. There is a valid Judgment of this honourable court dated 10

th

December 2020. The same has not been stayed and/or set aside. I allow the application in the following terms:-

(i) That the plaintiff/applicant is hereby authorized to appoint a licenced Auctioneer to evict and remove the 1

st

defendant, his tenants, and their families or any person claiming through them from Title Number Kiambu Municipality/Block 1/57.

(ii) That the OCS Kiambu Police Station is hereby ordered to provide security during the eviction exercise.

(iii) That the 1

st

defendant do bear the plaintiff’s costs and the Auctioneer’s costs during the eviction exercise.

It is so ordered.

Dated, signed and delivered in Nairobi on this 24

th

day of June 2021.

...........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Njeru for the Plaintiff

Mr. Mutanda for Mr. Gitonga for the 1

st

Defendant

No appearance for the 2

nd

and 3

rd

Defendants

Phyllis – Court Assistant