Hamisi Omar Juma & 152 others v Amralai J Rajshi Shah & 2 others [2015] KEELC 119 (KLR)
The bottom line
#A Mombasa court refused to undo a default judgment in an adverse possession land case because the owner never filed a draft defence.
What this practically means
#Executive summary
#Key legal issues
#Validity of service by advertisement
Service by advertisement in the Standard and Daily Nation newspapers of 22nd June 2012 was proper; small size or classified placement does not invalidate it
Order 5 rule 17(4) governs service by advertisement but does not prescribe the size of the advert. The cuttings were annexed to the affidavit of service of Leonard Shimaka, and the defendants served were those named in the certificate of official search. The applicant's complaint about tiny print therefore failed, leaving only the discretionary route.
Exercise of discretion to set aside ex parte judgment
The discretion was not exercised in the applicant's favour because he failed to show a draft defence, explain missing links in his title, or establish injustice from mistake or inadvertence
Relying on Pithon Waweru, Patel v E.A. Cargo Handling and Shah v Mbogo, the court considered the nature of the action (adverse possession), the absence of a draft defence, the applicant's registration occurring after suit was filed, and unexplained acquisition of the 2nd defendant's half share. These missing links meant the application met none of the setting-aside principles.
Status of a non-party seeking to set aside judgment
The applicant was not a party to the suit, distinguishing his position from Pithon Waweru and making the absence of a draft defence fatal
The court noted the difference between this case and Pithon Waweru: the applicant was a stranger to the suit. For such a person to be heard, the court required proof of a defence and of how the suit property vested in him; the succession documents annexed did not confer ownership of the suit property on him.
Legal principles established
#- Where service of summons is proper, an ex parte judgment can only be set aside in the exercise of the court's discretion guided by established principles
- The size or placement of a newspaper advertisement for service is not a ground to invalidate service where the rules do not prescribe size
- The discretion to set aside is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist those obstructing justice
- A bare assertion of ownership without a draft defence is not a good defence, especially in an adverse possession claim
Court orders
#- 1.The application dated 1st December, 2014 is dismissed
- 2.Costs of the application awarded to the plaintiffs/respondents
- Jurisdiction invoked
- Inherent discretion to set aside ex parte judgment under the Civil Procedure Rules (Order 5 rule 17(4) on service by advertisement); the court exercised first-instance discretion over an application in a pending adverse possession suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Omar Juma & 152 others v Amralai J Rajshi Shah & 2 others [2015] KEELC 119 (KLR)", Case Analysis (2015). Not stated on the face of the judgment (application dated 1st December, 2014 in the adverse possession suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/119/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.