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ELCDismissedNot stated in the judgment· [2017] KEELC 442 (KLR)

Felista Njeri Mukoma v Catherine Wanjiru Mwaura & 3 others [2017] KEELC 442 (KLR)

Environment and Land Court
14 December 2017
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to lift a default judgment because the defendants ignored court papers and admitted the key facts in their own defence.

What this practically means

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Executive summary

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The Defendants, a mother and her three children, applied by notice of motion dated 24/5/2017 to set aside an interlocutory judgment entered against them on 27/4/17 and to set aside the formal proof proceedings taken in the suit. The Plaintiff had sued seeking a declaration that a lease agreement dated 13/1/2016 over property Kabete/Kabete/2057 was null and void and a refund of Kshs.600,000/= paid as rent. Service was effected on 7/2/17 through the 3rd Defendant, but the Defendants did not enter appearance or file a defence, prompting the interlocutory judgment. Formal proof proceeded on 23/5/17 in the absence of Defence counsel who, though present in the morning, stayed away when the matter was listed at 12.30pm. The Defendants argued they had a good defence with triable issues, that delay was beyond their control, and that no summons were served. The Plaintiff opposed, citing laches and the absence of triable issues. The Court held the Defendants were duly served and gave no cogent explanation for the inordinate delay, noting counsel was on record five days before the formal proof hearing. On triable issues, the Court found the Defendants admitted entering the lease and receiving Kshs.600,000/= as rent before obtaining letters of administration on 20/2/17, so nothing was left to try. The application was dismissed with costs to the Plaintiff/Respondent on 14/12/2017.

Key legal issues

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01

Service of summons and default in entering appearance

Holding

The Defendants were duly served on 7/2/17 through the 3rd Defendant and their failure to enter appearance or file a defence within the stipulated 15 days was inexcusable; the reasons for the inordinate delay, though explained, were not cogent.

Reasoning

The Defendants acknowledged service in February 2017 but only instructed counsel in May 2017. The Court held a prudent person would have sought another lawyer within the stipulated time rather than waiting after being turned away by the advocate who drafted the lease and after seeking redress at the DC's office. Counsel's notice of appointment filed 5 days before the hearing belied her claim of recent appointment.

p. 3
02

Existence of triable issues justifying setting aside the interlocutory judgment

Holding

No triable issues exist because the Defendants admit entering the lease agreement and receiving Kshs.600,000/= as rent before obtaining letters of administration on 20/2/17, long after signing the agreement in 2016.

Reasoning

The plaint alleged the defendants had no legal power to enter the lease or receive rent for the estate of a deceased person without a grant. Both allegations are matters of law and fact, but the defendants admitted the core facts in their draft defence and affidavit, leaving nothing to try. The regular entry of the interlocutory judgment therefore stood.

p. 3

Legal principles established

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  • Setting aside judgment is at the discretion of the Court, and a party applying is appealing to the conscience of the Court
  • A triable issue is expressed by a party with particulars in the plaint and denied by another party with particulars of the defence

Court orders

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  1. 1.The Defendants' application dated 24/5/2017 to set aside the interlocutory judgment and formal proof proceedings is dismissed
  2. 2.Costs shall be to the Plaintiff/Respondent
Jurisdiction invoked
Original civil jurisdiction over the suit and the Defendants' application dated 24/5/2017 to set aside interlocutory judgment (specific provision not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Felista Njeri Mukoma v Catherine Wanjiru Mwaura & 3 others [2017] KEELC 442 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/442/eng@2017-12-14

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