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ELCPartially AllowedNot stated in the judgment (Environment and Land Court suit filed 14th July 2016)· [2017] KEELC 1487 (KLR)

Purity Kabari Karuri & 6 others v Nancy Kariuko Ndwiga [2017] KEELC 1487 (KLR)

Environment and Land Court
29 September 2017
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court set aside a default judgment, confirming you cannot win a land trust case automatically just because the other side never filed a defence.

What this practically means

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Executive summary

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This ruling by B.N. Olao J of the Environment and Land Court at Kerugoya determined the defendant's Notice of Motion dated 5th December 2016 seeking to set aside an interlocutory judgment entered against her on 12th August 2016 and for leave to enter appearance and file a defence out of time. The underlying suit, filed on 14th July 2016 by the plaintiffs, sought a declaration that the late Ndwiga Njeru held land parcel BARAGWE/THUMAITA/944 in trust for his family and an order for its registration in the names of the plaintiffs and the defendant in equal shares, alleging that the insertion of the defendant's name into the register was fraudulent. The defendant admitted service of summons on 22nd July 2016 but explained that her erstwhile advocates, Igati Mwai & Co. Advocates, took no action, leading to the entry of interlocutory judgment. The court held that the claim was one for a declaration of trust and cancellation of title, not a claim for pecuniary damages or detention of goods, so interlocutory judgment could not properly have been entered under Order 10 Rule 7 of the Civil Procedure Rules; the plaintiffs should have set the suit down for hearing under Order 10 Rule 9. Applying its unfettered discretion to set aside ex-parte judgments, guided by Shah v Mbogo and Patel v E.A Cargo Handling Services Ltd and Article 50(1) of the Constitution, and distinguishing the plaintiffs' cited authority of Peter Njuguna Gitau, the court allowed the application, set aside the interlocutory judgment ex debito justitiae, gave the defendant 15 days to file and serve her defence and counter claim, and ordered each party to bear their own costs of the application. The court also criticised the prevalent practice of entering interlocutory judgments in inappropriate cases.

Key legal issues

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01

Whether interlocutory judgment was properly entered on a trust/fraud claim over land

Holding

The judgment was improperly entered; the claim was for a declaration of trust and cancellation of title, not pecuniary damages or detention of goods, so Order 10 Rule 7 did not apply

Reasoning

The plaint sought a declaration that the deceased father held the land in trust for the family and an order for co-registration, with no claim for damages. Interlocutory judgment under Order 10 Rule 7 lies only for pecuniary damages or detention of goods. For other claims, Order 10 Rule 9 requires the plaintiff to set the suit down for hearing. The judgment entered on 12th August 2016 was therefore of no legal force, and the Deputy Registrar should guard against this common practice.

p. 2
02

Whether the court should exercise its discretion to set aside the interlocutory judgment

Holding

Yes. The discretion to set aside ex-parte judgments is unfettered where no injustice is occasioned, and the defence and counter claim raise triable issues

Reasoning

Even assuming proper service, the court has an unfettered discretion to set aside an ex-parte judgment provided no injustice is caused to the other side. The defendant's annexed defence denies the trust claim and raises a counterclaim for a permanent injunction, presenting issues that ought to go to trial. Article 50(1) of the Constitution guarantees every person a fair hearing of any dispute resolvable by law, reinforcing the need for the matter to be determined on its merits.

p. 3
03

Whether the plaintiffs' cited authority (Peter Njuguna Gitau) compelled dismissal of the application

Holding

No; that decision was distinguishable because the hearing date there had been taken by consent and the defendants had lied about service, and that dispute had been litigated to the Court of Appeal

Reasoning

The plaintiffs relied on the court's own prior decision, but the court distinguished it on two grounds: the hearing date in that case was taken with the consent of the parties and the defendants falsely denied service, showing unclean hands; and the dispute there had been litigated up to the Court of Appeal, leaving no defence worth consideration. Neither feature applied here.

p. 3

Legal principles established

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  • Interlocutory judgment under Order 10 Rule 7 may only be entered where the plaint claims pecuniary damages only or detention of goods; for other claims the plaintiff must set the suit down for hearing under Order 10 Rule 9
  • Where there is no proper service, the court will set aside an ex-parte judgment as a matter of law (ex debito justitiae); even with proper service, the court has an unfettered discretion to set it aside provided no injustice is occasioned to the opposite party
  • A party who deliberately seeks to obstruct or delay the course of justice does not deserve the court's discretion in setting aside a judgment

Court orders

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  1. 1.The interlocutory judgment dated 12th August 2016 is of no legal consequences and is therefore set aside ex debito justitiae
  2. 2.The defendant has 15 days from the date of the ruling to file and serve her defence and counter claim
  3. 3.Each party to meet their own costs of the application
Jurisdiction invoked
Inherent discretion to set aside interlocutory judgment under Order 10 of the Civil Procedure Rules, guided by Article 50(1) of the Constitution

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, "Purity Kabari Karuri & 6 others v Nancy Kariuko Ndwiga [2017] KEELC 1487 (KLR)", Case Analysis (2017). Not stated in the judgment (Environment and Land Court suit filed 14th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1487/eng@2017-09-29

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