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ELCPartially AllowedELC No. 385 of 2013· [2014] KEELC 376 (KLR)

Rose Wanjiru Kamau v Tabitha N Kamau & 3 others [2014] KEELC 376 (KLR)

High Court of Kenya
9 May 2014
LGL. Gacheru
1,509 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Division of the High Court at Nairobi (L. Gacheru J) on a Notice of Motion dated 12th September 2013 by the 2nd Defendant, Dennis Ndegwa Wanjohi, seeking review and vacation of ex parte orders issued on 23rd May 2013, and an order that the Plaintiff's application dated 20th March 2013 be heard inter partes. The applicant averred he was never served with the suit documents and only learnt of the matter on 4th September 2013 when his tenant passed on an application for his committal to civil jail. He contended he is the lawful owner of the suit premises, has constructed buildings occupied by tenants, and has a good defence. The Plaintiff, supported by affidavits of the process server Jeff Kisomo Bernard and Harrison Nyoike Kamande, maintained the applicant was duly served but ignored the documents. The court applied Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, adopting the principles in Shanzu Investment Ltd v Commissioner of Lands (defence on merit, prejudice, explanation for delay) and Nimrod v Joseph Momanyi (a litigant should not be deprived of the chance to press his defence). Finding the applicant had a defence on merit, that the restraining orders were prejudicial to him, no prejudice to the Plaintiff, and a reasonable explanation for the delay, the court allowed the application in terms of prayers 2 and 3, set aside the ex parte orders, directed an inter partes hearing, and ordered costs in the cause.

Key legal issues

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01

Setting aside ex parte orders under Order 12 Rule 7

Holding

The court exercised its discretion to set aside the orders of 23rd May 2013 where the applicant alleged non-service and showed a defence on merit

Reasoning

Order 12 Rule 7 confers discretion to set aside or vary judgments or orders on just terms. Applying the Shanzu Investment and Nimrod principles, the court found the applicant had a draft defence claiming ownership of the suit property, that the restraining orders were prejudicial to him, that no prejudice to the respondent was shown, and that his explanation for delay (non-service) was reasonable despite the dispute of fact.

p. 3
02

Overriding objective and ends of justice

Holding

Sections 1A, 1B and 3A of the Civil Procedure Act supported setting aside the ex parte orders so the application could be heard inter partes

Reasoning

The overriding objective requires civil disputes to be resolved justly. The court found that the ends of justice were best met by vacating the ex parte restraining and preservation orders of 23rd May 2013 so that the application dated 20th March 2013 could be heard on merit with both parties present.

p. 4

Legal principles established

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  • The court has a wide discretion to set aside judgment, exercisable on terms that are just
  • A litigant should not be deprived of an opportunity of pressing his defence even without sufficient cause for non-attendance

Court orders

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  1. 1.The orders of 23rd May 2013 (restraining/preservation orders) are set aside/vacated
  2. 2.The application dated 20th March 2013 is to be heard inter partes and determined on merit
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Shanzu Investment Ltd v The Commissioner of Lands
    Civil Appeal No. 100 of 1993
  • Nimrod v Joseph Momanyi
    Civil Appeal No. 35 of 1998
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rose Wanjiru Kamau v Tabitha N Kamau & 3 others [2014] KEELC 376 (KLR)", Case Analysis (2014). ELC No. 385 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/376/eng@2014-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.