Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 14th March 2014 (in the main adverse possession suit)· [2016] KEELC 504 (KLR)

Cosmas Safari Chula & 134 others v Bryan Daniel Mc Cleary & another [2016] KEELC 504 (KLR)

Environment and Land Court
6 October 2016
AOA. Omollo
1,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to cancel orders that had revoked a landowner's title because she offered no proof she actually owned the disputed plot.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (A. Omollo, J) determined an application dated 14th March 2014 by Constance Jumwa Lazaro, the 10th plaintiff, against Titus Siema Harambee, the 118th plaintiff, both of whom had obtained judgment in a collective adverse possession suit over parcel MN/II/216, registered as joint owners and later subdivided among plaintiffs. On 24th September 2013 the court, on the Respondent's application of 2nd July 2013, cancelled the applicant's title to plot MN/II/13088 ex parte. The applicant sought stay, discharge or setting aside of those orders and an injunction against the Respondent, contending she was never served and that cancellation breached her constitutional property rights under Article 40. The Respondent maintained the application was served on the advocates on record, that the applicant was a committee member who had colluded to allocate herself the church's plot, and that the plot had been occupied by his church since 2000. The court framed two issues: whether service was properly effected, and whether good grounds existed to set aside the orders. It found the process server's unchallenged evidence of personal service on Mr Mwakireti, the advocate then on record, conclusive in the absence of any counter-affidavit, cross-examination, or notice of change of advocates. On setting aside, the court held the applicant produced no evidence of entitlement to the plot to the exclusion of the Respondent. The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Sufficiency of service of the 2nd July 2013 application

Holding

Service on Mr Mwakireti, advocate on record for the plaintiffs, was properly and satisfactorily effected.

Reasoning

The process server deposed that he personally served Mr Mwakireti who accepted service but declined to sign. Mwakireti did not swear a counter-affidavit denying service, the applicant did not cross-examine the process server, no notice of change of advocates was on file, and Mwakireti had actively participated in the proceedings for all plaintiffs. The applicant also never denied being a committee member whom Mwakireti had warned against self-allocation of plots.

p. 3
02

Whether exparte orders cancelling the applicant's title should be set aside

Holding

No. The applicant failed to demonstrate a good defence or entitlement to the disputed plot.

Reasoning

The prior judgment ordered the plaintiffs to be jointly registered as owners of the original parcel No 216; the applicant's title derived from that judgment. To displace the orders of 24th September 2013 she had to show entitlement to the disputed plot to the exclusion of the Respondent, but she produced no affidavits from co-plaintiffs or the allocation list. Setting aside being discretionary, no reasonable cause was established.

p. 3

Legal principles established

#
  • The burden of proving that service was not properly effected lies on the party asserting it; an unchallenged affidavit of service, not countered by affidavit or cross-examination, stands.
  • The court may set aside exparte orders even where service was proper if a good defence is shown, but setting aside is a discretionary exercise requiring reasonable cause.

Court orders

#
  1. 1.The application dated 14th March 2014 is dismissed
  2. 2.Each party to bear their respective costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 40
Jurisdiction invoked
Order 22 Rule 22, Order 40 Rules 1 and 2 and Order 51 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Cosmas Safari Chula & 134 others v Bryan Daniel Mc Cleary & another [2016] KEELC 504 (KLR)", Case Analysis (2016). Application dated 14th March 2014 (in the main adverse possession suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/504/eng@2016-10-06

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