Nyando Millers Limited v SBI International Holdings Ag (Kenya) [2017] KEELC 2646 (KLR)

Summary at a glance

Facts

The Plaintiff filed a suit for aggravated damages for trespass, permanent injunction, and costs, alleging that the Defendant had wrongfully excavated and transported earth and rocks from the Plaintiff's land. The Defendant failed to file their defense within the time set in the summons and applied for an interlocutory judgment in default of defense.

Issues

• Whether the Defendant has offered a reasonable explanation for the delay in filing the defense.
• Whether the defense presented by the Defendant raises triable issues capable of going for trial

Reasoning

The court found that the Defendant failed to provide documentary evidence of negotiations for an out-of-court settlement and that their statement of defense denied excavating road construction materials from the Plaintiff's land. The court determined that the Defendant's response raises triable issues and that the Defendant should pay the Plaintiff thrown away costs.

Outcome

Appeal allowed

Orders

• The interlocutory judgment in default of defense entered on 18th December 2015 is set aside.
• The Defendant is allowed to file and serve their statement of defense within 30 days.
• The Defendant is required to pay the Plaintiff thrown away costs of Ksh.5,000 in 30 days and in default execution to issue.