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ELCDismissedNot stated in the judgment text (Meru ELC, application dated 27th August 2013)· [2017] KEELC 1420 (KLR)

Abdulla Mohamed Abdulla Ali v Ali Mohamed Abdulla & 2 others [2017] KEELC 1420 (KLR)

Environment and Land Court
24 October 2017
LML.N. MBUGUA
1,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru land defendant who ignored court papers and challenged an ex parte judgment too late lost his bid to stay execution and recover his belongings.

What this practically means

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Executive summary

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The 1st defendant applicant moved the Environment and Land Court at Meru by Notice of Motion dated 27th August 2013 seeking a temporary mandatory injunction compelling the plaintiff to open the building on Plot No. MERU TOWN BLOCK 1/4 and release the applicant's properties (including a gas cooker, cylinder, medicines, documents and utensils), a stay of execution of the ex parte judgment and decree of 18/7/2013, and an order deeming his draft defence and counterclaim as duly filed. He alleged he was never served with summons, that the affidavit of service was falsely sworn by process server Stanley Mworia, that the suit land belonged to the estate of his deceased father and was the subject of succession proceedings, and that his personal effects remained locked in the premises. The respondent maintained he was the lawfully registered owner, detailed the process server's connection to the applicant's advocates, produced a Government Documents Examiner's report suggesting the process server's denial was false, reported the matter to police, and averred that the decree had already been executed. The court framed three issues: service, triable issues, and whether the orders could issue. It found service had been effected since the applicant failed to rebut the respondent's detailed averments by further affidavit or cross-examination; that the draft defence raised no triable issues because the respondent's certificate of lease was unchallenged, no prayer for cancellation was made, and the succession and criminal cases were unexplained; and that a stay was futile as execution had already occurred, while return of goods could not be ordered as those issues were not raised at trial. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether summons to enter appearance were served on the 1st defendant

Holding

The court found service was effected and rejected the applicant's claim of non-service.

Reasoning

The respondent gave minute details of the process server, obtained a Government Documents Examiner's report and reported the matter to the police. The applicant, alleging non-service, did not file a further affidavit to rebut these averments nor seek cross-examination of the process server on his two conflicting affidavits. The court therefore inclined to believe service had been effected and the application failed on this point.

p. 4
02

Whether the draft defence raises triable issues

Holding

The draft defence raised no triable issues.

Reasoning

The certificate of lease showed the respondent as registered owner since 9.9.1983, while the applicant had no documents of ownership. No prayer for cancellation of the lease on grounds of fraud was included in the draft defence. The cited succession cause of 1982 was old with no updated particulars, and the relevance of the criminal case was not explained, so the defence disclosed no triable issue.

p. 4
03

Whether the orders sought (mandatory injunction, stay, deeming of defence) could be granted

Holding

They could not, as the decree had been executed and the goods claim was not raised at trial.

Reasoning

The main prayers in the plaint were eviction and permanent injunction; the decree issued on 26.7.13 and had been executed by the time of the respondent's affidavit on 5.5.15, a contention unrebutted. A stay after execution is futile, and return of goods cannot be ordered as specific performance where the issues were not raised at trial. The application was therefore unmerited and dismissed with costs.

p. 4

Legal principles established

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  • A party alleging non-service who is confronted with detailed averments of service must counter them by further affidavit or cross-examination of the process server; failure leads the court to find service was effected.
  • A stay of execution cannot be granted where execution has already occurred.

Court orders

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  1. 1.The Notice of Motion dated 27th August 2013 is dismissed with costs to the 1st Respondent
Jurisdiction invoked
Inherent powers of the High Court/ELC to set aside or vary orders and grant interim relief pending hearing (application under certificate of urgency; enabling provision not quoted in 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, "Abdulla Mohamed Abdulla Ali v Ali Mohamed Abdulla & 2 others [2017] KEELC 1420 (KLR)", Case Analysis (2017). Not stated in the judgment text (Meru ELC, application dated 27th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1420/eng@2017-10-24

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