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ELCAllowedChuka ELC Case No. 214 of 2017· [2018] KEELC 2871 (KLR)

Makunyi Rwanda v Ruth Karauki Ayub [2018] KEELC 2871 (KLR)

Environment and Land Court
27 June 2018
PNP. M. Njoroge
1,594 words in judgment
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The bottom line

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The Environment and Land Court in Chuka set aside a judgment entered without proper service, giving the landowner a full chance to defend her property.

What this practically means

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Executive summary

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The defendant/applicant moved the Environment and Land Court at Chuka by a Notice of Motion under Order 22 rule 2(1) and Order 10 rule 11 of the Civil Procedure Rules 2010 and sections 1A and 1B of the Civil Procedure Act, seeking stay of execution of an ex-parte judgment delivered on 22nd January 2018, its setting aside, and unconditional leave to file her defence within 14 days. The application was supported by the affidavit of Sisto Marunguria Migwi, sworn with the defendant's authority, who explained that the defendant resided in the USA; that the process server, Stanley Mworia M'Mbui, had recorded in his affidavit of service that he was informed by the area chief that the defendant had migrated to America; that the plaintiff made no attempt at service despite the defendant being in Kenya from 13th August to 8th November 2015; and that the defendant, registered owner of L.R. No. S. Tharaka/Tunyai/2788, would be prejudiced if denied a chance to defend. The plaintiff filed no replying affidavit, and when the matter was heard inter partes on 26th June 2018 he only asserted that a curse lay on the suit land and that a local politician was inciting the applicant. The court agreed the application was unopposed and allowed prayer 3, setting aside the ex-parte judgment and granting the defendant unconditional leave to file her defence within 14 days, with costs in the cause.

Key legal issues

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01

Setting aside ex-parte judgment where service was not effected to the standard required by law

Holding

The ex-parte judgment of 22nd January 2018 was set aside and the defendant granted unconditional leave to defend, the application not being opposed.

Reasoning

The application under Order 22 rule 2(1) and Order 10 rule 11 of the Civil Procedure Rules sought stay and setting aside of an ex-parte judgment. The supporting affidavit showed the process server was informed the defendant had migrated to America, and no further efforts at service were made despite her presence in Kenya for nearly three months. The application was unopposed, the plaintiff filing no replying affidavit, and the court allowed prayer 3.

p. 2

Legal principles established

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  • An unopposed application may be allowed on the strength of the applicant's material.

Court orders

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  1. 1.The ex-parte judgment delivered on 22nd January 2018 is set aside
  2. 2.The defendant is granted unconditional leave to file her defence within 14 days after delivery of the ruling
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 rule 2(1)
  • Civil Procedure Rules 2010Order 10 rule 11
  • Civil Procedure Actsections 1A & 1B
Jurisdiction invoked
Order 22 rule 2(1) and Order 10 rule 11 of the Civil Procedure Rules 2010, sections 1A & 1B of the Civil Procedure Act

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, "Makunyi Rwanda v Ruth Karauki Ayub [2018] KEELC 2871 (KLR)", Case Analysis (2018). Chuka ELC Case No. 214 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2871/eng@2018-06-27

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