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ELCPartially AllowedNot stated in the judgment as provided· [2017] KEELC 725 (KLR)

Jenifer Akeyo Wale v Joseph Ondiek Olweny [2017] KEELC 725 (KLR)

Environment and Land Court
22 November 2017
639 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Joseph Ondiek Olweny, the Defendant, moved the Environment and Land Court by notice of motion dated 1st September 2016 seeking stay of execution of a decree and setting aside of the ex parte judgment of 28th April 2016. The application was opposed by Jenifer Akeyo Wale, the Plaintiff, via replying affidavit sworn 16th November 2016, and both counsel filed written submissions. The court framed three issues: properness of service, whether the Defendant offered a reasonable explanation for failing to enter appearance and file a defence, and whether the orders sought should issue. On service, the court found the Defendant's allegation that summons were left with his wife unsubstantiated, as no affidavit from the wife was filed, while affidavits of service sworn by process server David Elvis Ochieng confirmed service on the Defendant on two occasions - once when pointed out by Ms Agneta Achieng and again on 30th June 2016 in the presence of Pamela Achieng - with the Defendant declining to sign acknowledgment. On the merits, the court noted the Defendant's claim of possession of the suit land was disputed, and that the land certificate annexed to his application showed Gabriel Adoyo Ondiek and James Okun Olweny as registered proprietors, while the Plaintiff asserted she was the first registered proprietor. Balancing proper service against the desirability of hearing the dispute on its merits, the court allowed the application conditionally: the judgment of 28th April 2016 was set aside to permit the Defendant to file and serve his defence, statement and documents within fourteen days, upon payment of thrown away costs of Kshs.20,000/= within fourteen days, failing which the setting aside order would automatically lapse and/or be vacated.

Key legal issues

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01

Properness of service of summons to enter appearance

Holding

Service was properly effected; the affidavit of service by David Elvis Ochieng confirmed service on the Defendant, who was pointed out by his wife, and a further service on 30th June 2016 in the presence of his wife Pamela Achieng.

Reasoning

The Defendant claimed summons were left with his wife who never handed them over, but produced no affidavit from her to substantiate this. The process server's affidavits of service showed personal identification of the Defendant on two occasions, both times with a spouse present, and that the Defendant declined to sign acknowledgment of service. Uncorroborated allegations cannot defeat sworn affidavits of service.

p. 1
02

Whether the Defendant gave a reasonable explanation for failure to enter appearance and file defence, and whether the ex parte judgment should be set aside

Holding

Although service was proper, the Defendant's claim of possession of the suit land was disputed and the land certificate showed other registered proprietors; in the interest of justice the judgment was set aside on conditions.

Reasoning

The court found the Defendant's possession claim disputed by the Plaintiff's replying affidavit, and noted the land certificate annexed to the application showed Gabriel Adoyo Ondiek and James Okun Olweny as registered proprietors, while the Plaintiff claimed to be first registered proprietor. Balancing these disputes against the principle that suits should be determined on their merits, the court exercised discretion to set aside the judgment conditionally.

p. 2

Legal principles established

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  • A party alleging improper service must substantiate the allegation by affidavit evidence; uncorroborated allegations will not displace an affidavit of service.
  • Where a defendant shows an arguable case on ownership of suit land, it is fair and just to set aside ex parte judgment on conditions to allow the suit be heard on its merits.

Court orders

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  1. 1.The court's judgment of 28th April 2016 is set aside to allow the Defendant file and serve his defence, statement and documents in fourteen (14) days.
  2. 2.The Defendant to pay the Plaintiff thrown away costs assessed at Ksh.20,000/= within 14 days.
  3. 3.Should the Defendant fail, neglect or decline to comply with orders (a) and (b) within the timelines given, the setting aside order will automatically lapse and/or be taken to have been vacated.
  4. 4.The notice of motion dated 1st September 2016 is allowed on those terms; the prayer for stay of execution was effectively rendered unnecessary by the setting aside of the judgment.
Jurisdiction invoked
Inherent and discretionary powers of the Environment and Land Court to set aside ex parte judgment (not expressly cited in the ruling)

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, "Jenifer Akeyo Wale v Joseph Ondiek Olweny [2017] KEELC 725 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/725/eng@2017-11-22

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