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ELCAllowedBungoma HCCC (application under Order 10 rule 11 Civil Procedure Rules)

Municipal Council of Bungoma v Kenya National Trading Corporation & another [2018] KEELC 4035 (KLR)

High Court of Kenya
21 February 2018
SMS. MUKUNYA
400 words in judgment
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The bottom line

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Kenya's High Court set aside a default judgment because the defendant was never served, restoring the right to be heard in a land dispute.

What this practically means

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Executive summary

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The defendant/applicant moved the court by Notice of Motion dated 18th November 2016 under Order 10 rule 11 of the Civil Procedure Rules, Sections 3A, 3B and 1A of the Civil Procedure Act, and Articles 159 and 48 of the Constitution, seeking to set aside the ex parte judgment entered on 7/11/2011 and all subsequent orders, and to be given leave to defend the suit with the annexed defence deemed duly filed upon payment of requisite fees. The applicant contended that the judgment was irregular because the defendant was never served with summons to enter appearance or with the pleadings. It was further alleged that the plaintiff concealed material facts, namely that Bungoma High Court Civil Case No. 48 of 2007 had been filed by the defendant against the plaintiff over the same subject matter, Bungoma Municipality Plot 567, claimed to have been acquired by the defendant in 1981, in which consent orders maintaining status quo had been issued, and that the plaintiff filed the present suit in disregard of those orders. The application was not opposed; counsel for the respondent confirmed there was no opposition. Justice S. Mukunya allowed the application as prayed, with costs to the applicants. Judgment was read in open court at Bungoma on 21st February 2018.

Key legal issues

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01

Setting aside of ex parte judgment under Order 10 rule 11 where service is disputed and material facts were allegedly concealed

Holding

The court allowed the unopposed application to set aside the judgment and grant leave to defend

Reasoning

The applicant invoked Order 10 rule 11 and the inherent jurisdiction of the court, alleging that the defendant was never served with summons to enter appearance or the pleadings, and that the plaintiff concealed the existence of Bungoma HCCC No. 48 of 2007 over the same plot and consent orders maintaining status quo. The application was unopposed, with counsel for the respondent confirming no opposition, so the court allowed it as prayed.

p. 2

Legal principles established

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  • An unopposed application may be allowed as prayed, particularly where the ex parte judgment is alleged to have been entered without service and with concealment of material facts

Court orders

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  1. 1.The Notice of Motion dated 18th November, 2016 is allowed as prayed
  2. 2.Judgment entered on 7/11/2011 and all subsequent orders set aside (as prayed in the application)
  3. 3.Defendant given leave to defend the suit and the annexed defence deemed duly filed upon payment of requisite fees (as prayed)
  4. 4.Costs of the application to the applicants
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules, Sections 3A, 3B and 1A of the Civil Procedure Act, and Articles 159 and 48 of the Constitution of Kenya 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, "Municipal Council of Bungoma v Kenya National Trading Corporation & another [2018] KEELC 4035 (KLR)", Case Analysis (2018). Bungoma HCCC (application under Order 10 rule 11 Civil Procedure Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4035/eng@2018-02-21

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