Johnson Cheruiyot v Peter Koske & 5 others [2017] KEELC 2369 (KLR)
- Court
- Environment & Land Court
- Case number
- 2369
- Citation
- [2017] KEELC 2369 (KLR)
- Decided
- 13 June 2017
The defendants' explanation for their delay is sufficient. The defendants' defence raises triable issues. The defendants' application is allowed, and the Notice to Show Cause is stayed on condition that the defendants deposit the decretal sum within fourteen days.
Facts
The defendants initially filed letters stating they were not in occupation of the suit land and believed these would be considered as defences. They subsequently instructed Weldon Ngetich Advocate, who did not file any documents on their behalf and did not cross-examine the plaintiff.
Issues
- Whether the defendants have given a satisfactory explanation for their delay in filing the application.
- Whether the defendants' defence raises triable issues.
- Whether the defendants are entitled to the orders sought.
Reasoning
The court finds the defendants' explanation for their delay sufficient and that their defence raises triable issues. The court considers justice cuts both ways and the interests of the plaintiff must be taken into account.
Outcome
Application allowed, Notice to Show Cause stayed
Orders
- Stay the Notice to Show Cause on condition that the defendants deposit the decretal sum of Kshs. 639,294/= in court within fourteen days from the date hereof.
- If the defendants fail to deposit the decretal sum, the Notice to Show Cause shall proceed.
Remedies
- Stay of Notice to Show Cause
Authorities cited
Legislation (1)
- Civil Procedure Act
Cases cited (3)
- Patel v East Africa Cargo Handling Services Ltd (1974) EA 75
- CMC Holdings Ltd v Nzioki (2004) KLR 173
- Kericho HCCC No. 6 of 2001 Eric Kimutai Mugun v Augustine Mageto Onkoba & 2 Others (Mumbi J)
Loading judgment…