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ELCDismissedNot stated in judgment (originally Nakuru High Court Civil Suit No. 220 of 2016, transferred)· [2018] KEELC 913 (KLR)

Esther Wanjiru Maina v Zipporah Nduta Karanja [2018] KEELC 913 (KLR)

Environment and Land Court
12 November 2018
MOM.C. Oundo
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to undo a judgment against a defendant who ignored her hearing notice, so she lost her property dispute and must pay costs.

What this practically means

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Executive summary

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The Defendant/Applicant filed a notice of motion dated 15th May 2018 under Order 12, rule 7 seeking stay of execution of the judgment delivered on 25th April 2018, setting aside of the proceedings of 2nd October 2017 and the judgment of 25th April 2018, and setting aside of the ex-parte judgment entered against her on 14th July 2017. She explained that she had been acting in person, received a hearing notice showing an erroneous date of 21st October 2017, and only learnt of the correct hearing date of 2nd October 2017 after the matter had proceeded, because of delayed collection of mail sent to a friend's postal address in Miharati. She relied on James Kanyita Nderitu & Another vs Morios Philotas Ghikas & Another [2016] eKLR, contending that ex-parte judgment should be set aside as a matter of right where there was no service. The Plaintiff/Respondent opposed, showing that notice had been served by registered post on 20th September 2017 with an affidavit of service as required under Order 5 Rule 15, and argued that the Applicant had been indolent, never attending court, and that equity aids the vigilant. The court held that service was duly effected through the address the Applicant had given, that she did not deny knowledge of the hearing date, and that she offered no explanation for waiting until judgment to move the court. Applying the Shanzu Investment Ltd tests (defence on merits, prejudice, delay), the court found no triable defence - the Applicant's claim to be a wife of the deceased was contradicted by a marriage certificate produced by the Plaintiff, whose title through a succession cause was unchallenged. The motion was dismissed with costs to the Plaintiff/Respondent on 12th November 2018.

Key legal issues

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01

Whether the ex-parte judgment and proceedings should be set aside under Order 12 Rule 7

Holding

The application fails because service was duly effected, the Defendant knew of the hearing date, her explanation for the delay was unmerited, and no triable defence was disclosed

Reasoning

The court found the Applicant was served via the address she had given and that Order 5 Rule 15 was complied with, so the ex-parte hearing was regular. The Applicant did not deny knowledge of the hearing date and offered no reason for not seeking to set aside the proceedings before judgment. Her defence (claim to be a wife of the deceased) was contradicted by a marriage certificate produced by the Plaintiff, and her title derived from an unchallenged succession cause. The discretionary power under Order 12 Rule 7 is not mandatory and equity aids the vigilant.

p. 2
02

Whether the Applicant's alleged failure to receive the hearing notice on time amounted to lack of service

Holding

No - service through the postal address she had given was valid and the ex-parte proceedings were regular

Reasoning

The Applicant claimed delayed receipt of mail sent to a friend's postal address in Miharati. The court found she did not deny knowledge of the hearing date and that service vide the address she gave satisfied Order 5 Rule 15, justifying the ex-parte hearing under Order 12 Rule 2(a). Her own replying affidavit acknowledged the notice was served by registered post on 20th September 2017 with an affidavit of service annexed.

p. 2

Legal principles established

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  • The tests for setting aside an ex-parte judgment are: defence on the merits, prejudice, and explanation for the delay.
  • Under Order 12 Rule 7 the court has discretion, not a duty, to set aside or vary a judgment upon such terms as may be just.
  • A court will not interfere with a regular judgment unless satisfied there is a defence on merits disclosing triable issues.

Court orders

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  1. 1.The Defendant/Applicant's Notice of Motion dated 15th May 2018 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActOrder 12, rule 7
  • Civil Procedure RulesOrder 12, Rule 2 (including 2(a))
  • Civil Procedure RulesOrder 5, Rule 15

Cases cited (2)

  • James Kanyita Nderitu & Another vs Morios Philotas Ghikas & Another
    [2016] eKLR
  • Shanzu Investment Ltd vs the Commissioner of Lands
    Civil Appeal No. 100 of 1993
Jurisdiction invoked
Order 12, rule 7 of the Civil Procedure Rules and all other enabling provisions of the law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Wanjiru Maina v Zipporah Nduta Karanja [2018] KEELC 913 (KLR)", Case Analysis (2018). Not stated in judgment (originally Nakuru High Court Civil Suit No. 220 of 2016, transferred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/913/eng@2018-11-12

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