Kiminisi Ole Ngenda v Mataiya Kantai & another [2017] KEELC 3002 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default land judgment because the defendants never properly received notice of the hearing and had a genuine defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment should be set aside despite contested service of the hearing notice
The court entertained a doubt that the defendants' advocate had been served with the hearing notice, and held the defendants were clearly not made aware of the hearing date.
The previous advocate denied personal service; the second notice was sent to a wrong physical address ('G4S Building' instead of 'Busia Business Centre') with no telephone contact to verify delivery. Given the doubt on service and the fact that the defendants were unaware of the hearing date, the interests of fairness and justice favoured allowing them to defend the suit.
Whether the defendants had a defence on the merits raising triable issues
The defendants' claim of adverse possession, backed by a pending suit (Kisii HCCC No. 226 of 2012), raised triable issues warranting that they be permitted to defend the suit.
The defendants contend that John Mutetia's title had been extinguished by over 12 years of adverse possession, so no valid title passed to the plaintiff, and that they have a pending suit over the same land. The court found this defence raises triable issues and that the application was genuine rather than an attempt to obstruct justice.
Legal principles established
#- The court has an unfettered, unlimited and unrestricted discretion to set aside an ex parte judgment, to be exercised judicially and on terms that are just.
- The test for setting aside an ex parte judgment is whether there is a defence on merits, whether prejudice may result, and, in case of delay, the explanation for the delay.
- Even where service is valid, a default judgment will be set aside if the defence raises triable issues.
Court orders
#- 1.The ex parte judgment entered on 4th April 2016 and delivered on 8th April 2016, together with all consequential orders made pursuant thereto, is set aside
- 2.The defendants' Notice of Motion dated 18th May 2016 is allowed
- 3.The plaintiff is awarded 'thrown away' costs of Kshs. 10,000/= as against the defendants
- Jurisdiction invoked
- Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiminisi Ole Ngenda v Mataiya Kantai & another [2017] KEELC 3002 (KLR)", Case Analysis (2017). Not stated in the judgment (suit arising from plaint dated 2nd April 2013 concerning LR No. Trans Mara/Moita/503). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3002/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.