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ELCDismissed· [2018] KEELC 4031 (KLR)

James Obara Keya & 2 others v Stephen Rakita Kurende [2018] KEELC 4031 (KLR)

Environment and Land Court
8 March 2018
1,436 words in judgment
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The bottom line

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A Kajiado court refused to undo a default judgment against a landowner because his defence was late, thin, and unexplained.

What this practically means

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 22nd August 2013, brought under Order 10 rules 10 and 11 of the Civil Procedure Rules, Section 3 of the Civil Procedure Act, Article 159 of the Constitution and the court's inherent jurisdiction, seeking to set aside ex parte orders of 2nd July 2012 and the default judgment entered on 11th July 2012. The Defendant, Stephen Rakita Kurende, deponed that the Notice of Motion of 4th May 2012 was dropped at his homestead on 2nd July 2012; his advocates prepared a replying affidavit but could not file it because the court file could not be traced, resulting in the Notice of Appointment and Replying Affidavit dated 3rd July 2012 being filed only on 18th July 2013. He denied being served with Summons to Enter Appearance. The Plaintiffs, represented by James Obara Keya, opposed, relying on an affidavit of service sworn by Peter Muendo Keli showing service of the Plaint and documents on 16th April 2012 at Kiserian Shopping Centre, and contending the draft Defence contained mere denials. The sole issue framed was whether the interlocutory judgment should be set aside. Applying the principles in James Wanyoike v CMC Motors Group (defence on merits, prejudice, delay), the court found the Defendant admitted service, took over a year to enter appearance, gave unconvincing explanations for the delay, and that his draft Defence admitted contracting to sell 10 acres of the suit land while remaining evasive on the Kshs 3.35 million purchase price. The application was dismissed with costs. Judgment delivered at Kajiado on 8th March 2018 by Christine Ochieng, Judge.

Key legal issues

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Whether the default/interlocutory judgement should be set aside under Order 10 rule 11

Holding

The application was dismissed because the Defendant was duly served, the draft Defence raises no triable issues, and the delay was unexplained

Reasoning

Applying the James Wanyoike tests, the court found the Defendant admitted service of documents on 16th April 2012, filed his Notice of Appointment and Replying Affidavit over a year late, produced no evidence of attempts to retrieve the missing court file, and in the draft Defence admitted contracting to sell 10 acres of the suit land while being evasive on the purchase price of Kshs 3.35 million and the subdivisions. The Plaintiffs would suffer prejudice since they had paid and not received the land.

p. 2

Legal principles established

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  • The court has unfettered jurisdiction to set aside an ex parte judgement, testing for: a defence on the merits, prejudice to the plaintiff, and explanation for delay

Court orders

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  1. 1.The Defendant's Notice of Motion dated 22nd August, 2013 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rules 9, 10 and 11
  • Civil Procedure ActSection 3
  • Constitution of KenyaArticle 159

Cases cited (1)

  • James Wanyoike & 2 others v C M C Motors Group Limited & 4 others
    [2015] eKLR
Jurisdiction invoked
Order 10 rules 10 and 11 of the Civil Procedure Rules, Section 3 of the Civil Procedure Act, Article 159 of the Constitution of Kenya and the inherent jurisdiction of the Court

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, "James Obara Keya & 2 others v Stephen Rakita Kurende [2018] KEELC 4031 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4031/eng@2018-03-08

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