Mutahar Ahmed Dahman & another v Athumani Sudiv [2014] KEELC 80 (KLR)
The bottom line
#A Malindi court set aside a default land judgment because a hidden Mombasa rent case created a genuine question, even though the defendant was properly served.
What this practically means
#Executive summary
#Key legal issues
#Service of Summons to Enter Appearance
The Defendant was served twice - on 27th February 2012 by Thomas Konde at Ibnu Abbas Mosque and on 30th May 2012 by Isaac Muriuki Kinyua at his house - so the judgment was regular.
The court assessed the viva voce evidence of the two process-servers and accompanying witnesses under cross-examination. Thomas Konde's account of service at the mosque was uncontroverted, and the tuk tuk rider who pointed out the Defendant was known to him and had no reason to lie. The Defendant never denied being at the mosque or at home on the relevant dates.
Whether the Defendant has a defence on the ejectment claim
He has none - the licence was revoked, he admitted paying only Kshs.30,000 covering 30 months which lapsed on 18th March 2002, and he was in arrears regardless of the rate applied.
Working from the Defendant's own affidavit figures, the court computed that even at Kshs.1,000 per month the lump sum of Kshs.30,000 paid in 2000 covered only 30 months, and even at the decreed Kshs.300 per month he was in arrears by the time of the 2010 notice to vacate.
Whether there is a triable issue on ground rent and mesne profits
Yes - a pending suit, Mombasa HCCC No. 206 of 1999, in which tenants obtained an injunction fixing rent at Kshs.300, was not disclosed in the Plaintiffs' pleadings and it is unclear whether its orders were set aside.
The Plaintiffs' claim relied on rent adjusted upwards to Kshs.2,000 per month, while the Defendant deponed that all tenants had agreed to pay Kshs.1,000 and that the earlier Mombasa case had restrained any increase. Since the status of that injunction was unresolved, the court could not condemn the Defendant to pay without first establishing the payable rate.
Legal principles established
#- Where a Defendant is not served with Summons to Enter Appearance, any default judgment entered must be set aside ex debito justitiae and the Defendant allowed to defend unconditionally.
- Where the judgment is regular, the Defendant must show why the discretion to set aside should be exercised in his favour, the primary consideration being the merits of the defence.
- Non-attachment of a draft defence to an application to set aside judgment is not fatal if the applicant raises triable issues in the application itself.
Court orders
#- 1.The Judgment of the court dated 12th July 2013 and the Decree be and are hereby set aside
- 2.The Defendant to file his Defence within 14 days from the date of the ruling
- 3.Each party to bear his own costs
- Jurisdiction invoked
- Original civil jurisdiction (not expressly stated; suit for possession, ground rent and mesne profits over land, application to set aside interlocutory default judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutahar Ahmed Dahman & another v Athumani Sudiv [2014] KEELC 80 (KLR)", Case Analysis (2014). Not stated in the judgment (Malindi; formal proof judgment delivered 12th July 2013; application dated 17th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/80/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.