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ELCPartially AllowedCivil Suit (notice of motion dated 7th November, 2017)· [2018] KEELC 2043 (KLR)

Jane Wangechi Kariuki v Grace Ruguru Thumbi & another [2018] KEELC 2043 (KLR)

Environment and Land Court (station Nyeri)
3 July 2018
LWL N Waithaka
1,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a land judgment won by default because the defendant was never properly served with hearing notices, meaning the case now starts over.

What this practically means

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Executive summary

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This was an unopposed notice of motion dated 7th November 2017 by the defendant, Grace Ruguru Thumbi, seeking to set aside an ex parte judgment delivered on 11th December 2014, together with consequential orders, and a prohibitory order pending inter-parties hearing. The applicant averred that after filing her defence and replying affidavit she was never served with pleadings or hearing notices, learned of the judgment only when served with a notice to vacate the suit premises, and that the hearing date had been taken ex parte. Relying on the principles in Wachira Kerani v Bildad Wachira and the authorities therein, the court examined the record and found irregularities in service: the notices of the hearing date were posted to the wrong postal addresses (Anthony Mathu at P.O. Box 782 Naivasha instead of the 1st defendant's P.O. Box 211, Mweiga), and the process server's claim of personal service was doubtful given her earlier acknowledged service and defence. Service on the 2nd defendant through a purported son, Mwaura, was also doubted as the applicant denied having such a son. Holding that a party must be given a reasonable opportunity to present their case and that denying a litigant a hearing should be a last resort, the court exercised its inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, set aside the ex parte judgment and all consequential orders, and directed that the suit proceed for hearing afresh as a defended case. Each party was to bear its own costs.

Key legal issues

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01

Sufficient cause for non-attendance and validity of service

Holding

The applicant gave a convincing explanation for her absence; service of the hearing notice was irregular, as notices were sent to wrong postal addresses and the process server's account was doubtful

Reasoning

The court compared the addresses on the certificates of postage and the invitation letters with the defendants' addresses on record and found discrepancies. The process server's claim of personal service at Mweiga was curious since the 1st defendant had earlier acknowledged service and filed a defence giving P.O. Box 211, Mweiga as her address. Service on the 2nd defendant through a purported son named Mwaura was also doubted.

p. 2
02

Discretion to set aside ex parte judgment

Holding

The court exercised its inherent jurisdiction to set aside the ex parte judgment so that the suit could be heard as a defended case

Reasoning

Applying the principles in Wachira Kerani v Bildad Wachira and the authorities cited therein (Patel v E.A. Cargo Handling Services, Shah v Mbogo, Sebei District Administration v Gasyali), the court held that denying a litigant a hearing should be the last resort and that substantial justice should prevail over technicalities.

p. 2

Legal principles established

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  • Setting aside an ex parte judgment is a matter of the discretion of the court, exercised to do justice between the parties
  • A person against whom a claim is made must be given a reasonable opportunity of presenting their case

Court orders

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  1. 1.Set aside the ex parte judgment delivered on 11th December 2014 and all consequential orders
  2. 2.Suit to proceed for hearing afresh as a defended case
  3. 3.Each party to bear their own costs for this application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rules 3 and 4
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (7)

  • Wachira Kerani vs Bildad Wachira
    Civil Suit No. 101 of 2011
  • Esther Wamaitha Njihia & two others vs. Safaricom Ltd
  • Patel vs E.A. Cargo Handling Services Ltd
  • Shah vs. Mbogo
  • Sebei District Administration vs Gasyali
  • Ongom vs Owota
  • Parimal vs Veena
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rules 3 and 4 of the Civil Procedure Rules 2010

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, "Jane Wangechi Kariuki v Grace Ruguru Thumbi & another [2018] KEELC 2043 (KLR)", Case Analysis (2018). Civil Suit (notice of motion dated 7th November, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2043/eng@2018-07-03

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