REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELC NO. 6 OF 2016

JOSEPH M. KYENGO……………………………………………….PLAINTIFF

VS

MUTUNGI NDONYE…………………………..……………..……..DEFENDANT

DEFENDANT’S/APPLICANT’S SUBMISSIONS ON HIS APPLICATION

DATED 6.02.2017.

MAY IT PLEASE YOUR HONOR,

These are the defendant’s/applicant’s submissions on his application dated 6.02.2017

that seeks:
1. To set aside orders issued on 22.11.2016 by the Honorable Justice S. Okongo in
the ELC Court at Nairobi, varied and/or discharged and the application dated
22.1.2016 be heard de novo on its merits.
2. A temporary order of injunction be issued restraining the respondent, his agents,
servants and/or anyone claiming under or through him from using, wasting
and/or interfering with the use and occupation of Land parcel no.
Kathonzweni/Muusini/463.
3. The defendant/applicant do continue using Land parcel no.
Kathonzweni/Muusini/463 in the manner that he has been.

SUBMISSIONS ON PRAYER 1 OF THE DEFENDANTS APPLICATION

DATED 6.02.2017- ORDERS ISSUED ON 22.11.2016 BE SET ASIDE AND
THE APPLICATION DATED 22.1.2016 BE HEARD DE NOVO.
Your Honor, we submit that the orders issued on 22.11.2016 ought to be set aside as a
matter of justice. The defendant has shown that the only reason he did not attend court
was because he was neither served with any hearing notice, nor was his advocates on
record despite being on record.

Order 10 Rule 11 provides that

“……where judgment has been entered under the Order for non
attendance the court may set aside or vary such judgment and any
consequential decree or order upon terms that are just……”

Your Honor, we submit that it would be just to vary the orders and directions that were
given on 22.11.2016. It is also in the interests of justice that the application dated
22.1.2016 be heard de novo on its merits so as to afford the defendant an opportunity to
be heard.
Rule 32 (1) of the Civil Procedure Rules, on the other hand provides as follows:
“1) A person who is aggrieved by a decree or an order of the Court may
apply for a review of the award, judgment or ruling—

(a) if there is a discovery of new and important matter or evidence

which, after the exercise of due diligence, was not within the
knowledge of that person or could not be produced by that person
at the time when the decree was passed or the order made; or
(b) on account of some mistake or error apparent on the face of the
record; or
(c) on account of the award, judgment or ruling being in breach of
any written law; or
(d) if the award, the judgment or ruling requires clarification; or
(e) for any other sufficient reasons.”

Justice Odunga in Winnie Wambui Kibinge & 2 others VS Match Electricals

Limited [2012] eKLR stated as follows with respect to default judgment-

“……..if the default judgment entered is a regular one, the court

has an unfettered discretion to set aside such judgment and
any consequential order or decree upon such terms as are just
as ordained by Order 9A rule 10 [now Order 10 Rule 11] of the
Civil Procedure Rules.”

“……..The broad approach is that unless there is fraud or

intention to overreach, there is no error or default that cannot
be put right by payment of costs. The court as is often said
exists for the purpose of deciding the rights of the parties and
not imposing discipline and that a defence on merits does not
mean a defence which must succeed but one which discloses
bona fide triable issues for adjudication at trial……”

It is our submission that it would be unjust to keep the lay defendant from the seat of
justice for purely not being served with a hearing notice and the court thus issuing
orders in absence of the defendant and without proof of service.

We are guided further by the finding of Justice Odunga in the Winnie Wambui
Kibinge & 2 others VS Match Electricals Limited [2012] eKLR case where he
stated as follows;

“..….In considering whether or not to set aside the default

judgment a judge has to judge the matter in the light of all the
facts and circumstances both prior and subsequent and of the
respective merits of the parties before it would be just and
reasonable to set aside or vary the judgment…. The principle
obviously is that unless and until the court has pronounced
 judgment upon the merits or by consent it is to have the power
to revoke the expression of coercive power when that has been
obtained only by failure to follow any rules of procedure……”

However should you find that the orders were issued regularly, we pray that you
exercise your unfettered discretion to set aside the said orders. We submit that the facts
and circumstances surrounding the service of the hearing notice upon the Defendant
should guide the court on setting aside the orders.

THE DEFENDANT HAS AN ARGUABLE DEFENCE AND COUNTERCLAIM

THAT RAISE TRIABLE ISSUES.
The Defendant has in his supporting Affidavit dated 06.02.2017 at paragraph 3
attached copies of his memorandum of appearance, replying affidavit and Defence and
counter claim as annexure “MN2”. It is our submission that the attached Defence
demonstrates that the defendant is keen on defending the plaintiff’s claim. There is not
only a Defence but also a counterclaim against the Plaintiff.

The Defendant raises the issue that:-

1. At the time of the sale agreement, the agreed purchase price was Kshs.
240,000/= and not Kshs. 276,000/= as alleged.
2. It was a term of agreement that the plaintiff would procure the services of a
surveyor in order to excise the 10 acres to enable the defendant obtains title.
3. The final payment was made on 18.9.2004 leaving a balance of Kshs. 25,000/=
which was to be paid after the actual delianations have been shown.
4. On 10.7.2005, he met the plaintiff on the land selling a part of the land to a third
party, who had been accompanied by a surveyor.
5. He took advantage of the presence of the surveyor who entered the land in the
presence of the plaintiff an confirmed that the land sold to him was actually
7.2638 acres and not 10 acres as agreed.
6. On discovery the plaintiff stated he would come for further deliberations but
instead, went ahead to issue the defendant with demand letters through his
advocates office.

The Defendant further raises a counterclaim that

1. The plaintiff has failed to specifically perform the sale agreement dated 8.2.2004
by refusing to delineate the land sold and hand over possession of 10 acres to the
defendant.
2. The plaintiff ought to be compelled to deliver vacant possession of 10 acres sold
to the defendant with immediate effect and or surrender the surplus amount paid
over and above what was payable for 7.2 acres of land.

We respectfully submit that these are seriously weighty issues which ought to be
ventilated having regard to the merits of each parties case.
 SUBMISSIONS ON PRAYER 2 OF THE DEFENDANTS APPLICATION
DATED 6.02.2017- A TEMPORARY ORDER OF INJUNCTION BE ISSUED
RESTRAINING THE RESPONDENT, HIS AGENTS, SERVANTS AND/OR
ANYONE CLAIMING UNDER OR THROUGH HIM FROM USING, WASTING
AND/OR INTERFERING WITH THE USE AND OCCUPATION OF LAND
PARCEL NO. KATHONZWENI/MUUSINI/463

The principles on which a court would be justified in granting an injunction were clearly laid
out in the case of Giella versus Cassman Brown(1973)EA 358 as follows:
i) An applicant must show a prima facie case with a probability of success.
ii) An interlocutory injunction will not normally be granted unless the applicant might
otherwise suffer irreparable injury which would not be adequately be compensated
for by an award of damages.
iii) If the court is in doubt, it must decide the case on a balance of convenience.

1. PRIMA FACIE CASE

A prima facie case is defined in Osborn’s Concise Law Dictionary as “a case in which there is
some evidence in support of the charge or allegation made in it, and which will stand
unless it is displaced”.

In the case of MRAO LIMITED VERSUS FIRST AMERICAN BANK OF KENYA

LIMITED AND TWO OTHERS (2003) eKLR states follows:-

“A prima facie case in an application includes but is not limited to a “genuine

and or arguable case”. It is a case which, on the material presented to the
court, a tribunal properly directing itself will conclude that there exists a
right which has apparently been infringed by the opposite party as to call for
an explanation or rebuttal from the latter.”

In the instant case, the defendant/applicant has demonstrated and it is not disputed that he is the
owner of the parcel of land the subject of this suit vide a sale agreement dated 8.2.2004. He has
been in occupation of the said land where he has been grazing, tilling and or otherwise using it
since 2004.

It has been proved by the affidavit before the court that there was a sale agreement between
the defendant/applicant and the plaintiff/respondent. The defendant/applicant has also
demonstrated that in the spirit of the said agreement he went ahead and paid all the monies
due and payable for 10 acres of land to be excised from plot no. 463 situated at Muusini Sub
location for a consideration of Kshs. 240,000/= out of which, the defendant/ applicant paid
Kshs. 215,000/= leaving balance of Kshs. 25,000/= which would be paid after the
plaintiff/respondent had procured the services of a surveyor and excised the 10 acres so as
to enable the defendant/applicant obtain title and pay the balance. It still remains a
mystery how the plaintiff/respondent engaged in selling the suit premises to a third party
without deliberations with the defendant/applicant.
Should the orders sought not be issued and the defendant/applicant then remains to suffer
loss and damage, this would be contrary to the spirit of Order 40 rule 1 and would only lead
to a miscarriage of justice.

In the instant case, the defendant/applicant is the rightful owner of the suit property known
as Kathonzweni/Muusini/463. Documents in support of his purchase are annexed to his
replying affidavit. The plaintiff/respondent has not adduced any documents in support of
his right of ownership on the suit land neither has he explained on what his claim of
ownership is founded. The plaintiff/respondent alleges that he sold 11½ acres the said
parcel of land whereas, on confirmation, the defendant/applicant realized that the
plaintiff/respondent had actually sold 7.2638 acres but not the agreed 10 acres. The
plaintiff/respondent on discovery stated that he would go for further deliberations on the
matter but went ahead to issue demands through his advocates to the
defendant/respondent and selling the land to 3rd parties.

The plaintiff’s/respondent’s allegation that he sold the suit property to the

defendant/applicant leaving an unpaid balance of Kshs.65, 000/= cannot in any way be
construed as sufficient evidence to rebut the defendant’s/applicant’s claim of ownership
since the applicant has clearly demonstrated that he purchased the said land from the
plaintiff/ respondent who is now out to rip him of what lawfully belongs to him by virtue of
the said sale agreement.

Given that the plaintiff/respondent has not availed any proof to support his claim that the
defendant/applicant failed to perform his part of the agreement; it is our submission that
the same remain mere allegations and cannot suffice to rebut the plaintiff’s/respondent’s
claim.
As such, therefore, we submit that the defendant/applicant has established a prima facie
case and has satisfied the first limb of the Giella test.

THE APPLICANT STANDS TO SUFFER IRREPARABLE LOSS THAT CANNOT

BE COMPENSATED BY DAMAGES.
It is not disputed that the defendant/applicant is currently in occupation of the suit
premises and has been since the year 2004. The plaintiff’s/respondent’s occupation thereof
will severely derogate from the applicant’s right to quiet enjoyment and possession of his
entire parcel of land. The plaintiff’s/respondent’s occupation and development of any
portion of the suit property will effectively bar the plaintiff from effecting developments on
his land. We submit that the loss sustained by the defendant/applicant cannot adequately
be compensated by damages. This is because the loss sustained by the defendant/applicant
is the loss of his right of quiet possession and enjoyment of the suit premises. This is a loss
which by its very nature cannot easily be quantified. As such, therefore, we submit that the
applicant has satisfied the second limb of the Giella test.

BALANCE OF CONVENIENCE
The defendant/applicant pleaded that he is the rightful owner of the suit premises,
Kathonzweni/Muusini/463. In support of this, he supplied several documents as proof of
purchase form the plaintiff/respondent which is attached to his replying affidavit. As such,
the plaintiff’s claim of ownership is unchallenged. It is trite that the balance of convenience
normally tilts in favour of rightful owner of the suit premises. As such, it is our submission
that the balance of convenience tilts in the applicant’s favour. It would thus only be just and
expedient that the orders sought be granted pending hearing and determination of the main
suit herein.

We therefore pray that this Honourable Court does allow the application as prayed.

That is all Your Honor.

DATED at MACHAKOS this day of 2017

FOR: O.N. MAKAU & MULEI

ADVOCATES FOR THE DEFENDANT/APPLICANT

DRAWN & FILED BY:-

O.N.MAKAU & MULEI
ADVOCATES,
SHANBAD HOUSE, 3RD FLOOR, (OUR REF: ONM/MKS/16/020)
P.O. BOX 2328-90100,
MACHAKOS.
TEL.044-2020321
EMAIL.onmakauadvocates@gmail.com

TO BE SERVED UPON:-
M/S PAUL KISONGOA & CO
ADVOCATES,
MUTUNGONI BUILDING,
MWATU WA NGOMA ROAD,
P.O. BOX 1463-90100,
MACHAKOS.