Peter Kigia Joram v Bornes Cherono Barta [2017] KEELC 2803 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant was served with summons and hearing notice
The court found the defendant was served and chose not to attend court
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.
Whether the ex-parte judgment should be set aside notwithstanding proper service
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
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.
Legal principles established
#- 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
#- 1.The defendant to pay throw away costs of Kshs. 15,000/= within 14 days from the date of the ruling
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.