Esther Njeri Kibue v Mary Wambui Munyui & 2 others [2017] KEELC 3292 (KLR)
The bottom line
#A Kenyan court set aside a default judgment in a land case because the plaintiff hid key facts when asking to serve the defendant by newspaper advertisement.
What this practically means
#Executive summary
#Key legal issues
#Whether leave for substituted service was properly obtained
The plaintiff obtained leave for substituted service through concealment of material facts, having failed to disclose the Murang'a case in which she knew the 2nd defendant was represented by Oonge & Co. Advocates; the 2nd defendant was denied the preferred mode of service.
The court noted the plaintiff was joined in Murang'a CMCC No. 115 of 2014 on 27th June 2014, before applying for substituted service, and knew Oonge & Co. Advocates acted for the 2nd defendant. Her affidavit claimed ignorance of the 2nd defendant's whereabouts. The court held she had a duty to disclose the Murang'a case and to attempt service through those advocates first. However, since setting aside service was not sought, the court left the matter there, treating it as relevant to whether the default judgment should stand.
Whether the interlocutory judgment against the 2nd defendant should be set aside
Yes. The 2nd defendant gave a satisfactory explanation for not entering appearance, had instructed advocates promptly upon learning of the suit, had an arguable defence, and stood to lose the suit property; the plaintiff would suffer no prejudice not compensable in costs.
Applying the settled discretion in Shah v. Mbogo, Chemwolo v. Kubende and Patel v. EA Cargo Handling, the court found no suggestion the 2nd defendant wilfully ignored the suit. He had appointed advocates on record by 4th March 2015, before the hearing before Mutungi J. on 17th March 2015. As registered proprietor and alleged innocent purchaser, he risked losing both property and purchase price. Equity favoured putting the default right by payment of costs rather than imposing discipline.
Whether the plaintiff would suffer prejudice if the judgment was set aside
No injustice or prejudice not compensable in costs was demonstrated; the suit was preserved by an inhibition on the title.
The plaintiff argued the suit was awaiting judgment and that setting aside would delay justice and prejudice her. The court, citing Apaloo JA in Chemwolo, held that absent fraud or an intention to overreach, defaults are remediable by costs. To protect her position while the suit is heard on the merits, the court issued an inhibition over LOC.14/KAIRO/1565 preventing further dealings, and awarded her the costs of the application assessed at Kshs. 15,000/=.
Legal principles established
#- The court has unfettered discretion to set aside a default judgment, to be exercised judiciously; where the judgment is irregular it must be set aside as of right, and where regular the applicant must explain the delay and show the merits of the defence.
- Substituted service is a last resort allowed only after personal service attempts have failed, and a party seeking leave for substituted service must make full and frank disclosure of material facts.
- A mistake or default should not ordinarily deprive a party of a hearing on the merits; errors can be cured by payment of costs absent fraud or an intention to overreach.
Court orders
#- 1.The Notice of Motion dated 28th July 2015 is allowed in terms of prayer 2 thereof as concerns the 2nd defendant only, setting aside the interlocutory judgment entered against him and the subsequent proceedings
- 2.The 2nd defendant to file his statement of defence, witness statements and bundle of documents within 21 days
- 3.An inhibition inhibiting registration of any other or further dealings with parcel LOC.14/KAIRO/1565 pending hearing and determination of the suit
- 4.The plaintiff to have the costs of the application assessed at Kshs. 15,000/= payable forthwith
- Jurisdiction invoked
- Original civil suit jurisdiction of the Environment and Land Court over a dispute concerning parcel LOC.14/KAIRO/1565 (provision not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Njeri Kibue v Mary Wambui Munyui & 2 others [2017] KEELC 3292 (KLR)", Case Analysis (2017). Not stated in the judgment (original suit filed 7th August 2013; plaint dated 5th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3292/eng@2017-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.