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ELCPartially Allowed· [2017] KEELC 2803 (KLR)

Peter Kigia Joram v Bornes Cherono Barta [2017] KEELC 2803 (KLR)

Environment & Land Court
30 May 2017
738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside a land judgment even though the defendant was properly served, but only if she pays costs and files her defence within 14 days.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru on the defendant's application dated 3 October 2016 seeking to set aside an ex-parte judgment delivered on 3 July 2013 and all consequential orders, on the ground that she was never served with summons to enter appearance and only learned of the suit when the plaintiff moved to execute an eviction order. The plaintiff opposed, relying on two affidavits of service sworn by process server Hebron Odhiambo Omolo evidencing service of summons on 16 April 2012 (deposed as 12 April 2012) and of a hearing notice, plus service by registered post of a notice of entry of judgment. The suit, filed on 27 March 2012, was brought by the registered owner of parcel Nakuru/Sondu River/36 against the defendant who entered the land in 2009, seeking vacant possession, general damages for trespass, mesne profits and a permanent injunction. The court found the affidavits of service elaborate and persuasive, holding the defendant was served but opted not to attend court, and that strictly she ought to bear the consequences. Nevertheless, taking the right to be heard seriously, the court in its discretion, as an act of grace, allowed the application subject to conditions: payment of throw-away costs of Kshs. 15,000/= within 14 days, and filing and service of a defence with documents, witness lists and statements within 14 days, failing which the judgment of 5 July 2013 would stand and the plaintiff could extract an eviction order. The plaintiff was awarded the costs of the application in any event.

Key legal issues

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01

Whether the defendant was served with summons and hearing notice

Holding

The court found the defendant was served and chose not to attend court

Reasoning

The court examined two affidavits of service sworn by process server Hebron Odhiambo Omolo, one for summons to enter appearance and one for the hearing notice. It described them as fairly elaborate and noted the process server personally knew the defendant, having earlier served her with a demand notice. The court was not persuaded by the defendant's denial of service.

p. 1
02

Whether the ex-parte judgment should be set aside notwithstanding proper service

Holding

The application was allowed in the court's discretion, despite the applicant being undeserving, subject to conditions of costs and time-bound filing of a defence

Reasoning

Although the court held there was no good ground to allow the application since service was proper, it weighed the constitutional right to be heard and exercised its discretion as an act of grace. It permitted the defendant to defend the suit on conditions: payment of throw-away costs and filing of a defence with documents and witness statements within 14 days, failing which the judgment would stand.

p. 2

Legal principles established

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  • A person properly served with summons is under a duty to attend court if they wish to contest the suit, and must bear the consequences of default
  • The court may, in its discretion and in deference to the right to be heard, set aside an ex-parte judgment even where the applicant is undeserving, subject to conditions

Court orders

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  1. 1.The defendant to pay throw away costs of Kshs. 15,000/= within 14 days from the date of the ruling
  2. 2.Subject to payment of the above costs, the defendant to file and serve her defence, with documents to be relied on at trial, list of witnesses and their statements, within 14 days
  3. 3.If the defendant does not comply with the conditions within the time limit, the judgment of 5 July 2013 to stand and the plaintiff be at liberty to extract an eviction order for execution
  4. 4.The plaintiff to have the costs of the application in any event
Jurisdiction invoked
Inherent discretion of the court to set aside ex-parte judgment (suit over land parcel Nakuru/Sondu River/36)

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, "Peter Kigia Joram v Bornes Cherono Barta [2017] KEELC 2803 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2803/eng@2017-05-30

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