Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedCase No 1177 of 2016· [2018] KEELC 4256 (KLR)

Peter Bogonko Onchonya v Janet Nyanchama Nyangau [2018] KEELC 4256 (KLR)

Environment and Land Court of Kenya
9 March 2018
JMJ. M. Mutungi
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Kisii Environment and Land Court set aside a landowner's eviction judgment because she was never properly served with the hearing notice, allowing her case to be heard afresh.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kisii on the defendant's Notice of Motion dated 20th June 2017 under Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking setting aside of an ex parte judgment delivered on 24th May 2017 directing her eviction from land parcel Central Kitutu/Daraja Mbili/3093, and a hearing on the merits. The suit had been listed during a court service week in March 2017 and proceeded ex parte on 24th March 2017 when only the plaintiff and his advocate appeared. The defendant contended she and her advocates were never served with a hearing notice, and that her defence and counterclaim raised triable issues. The plaintiff maintained service was effected by the Deputy Registrar, a process server and registered post, and that the defence was an afterthought. The court, relying on Patel v E.A. Cargo Handling Services Ltd, Shah v Mbogo and Shabir Din v Ram Parkash Anand, held the discretion to set aside is wide but must be exercised judiciously. It found no evidence the notice reached the defendant's advocates, noting discrepancies in the postal addressing and the closed postal box, and resolved the doubt in the defendant's favour. The defence and counterclaim, principally alleging fraudulent acquisition of the transfer to justify rectification of the register, raised triable issues. The judgment was set aside and the suit ordered heard afresh on merits, with thrown away costs of Kshs. 15,000/= to the plaintiff, failing payment within 30 days the judgment to stand reinstated and the defence and counterclaim dismissed.

Key legal issues

#
01

Service of hearing notice on the defendant's advocates

Holding

The court entertained doubt whether the defendant's advocates received the hearing notice and resolved the doubt in the defendant's favour.

Reasoning

Although the Deputy Registrar issued hearing notices, there was no evidence the notice reached the defendant's advocates' firm. The registered post receipt showed the parcel addressed to GPO-00100 while the advocates' box was 5926-00200, raising doubt over correct addressing. The defendant also deponed the box was closed for non-payment of dues. The totality of the averments justified resolving doubt in the defendant's favour.

p. 2
02

Whether the defence and counterclaim raise triable issues

Holding

The court was not persuaded the defence and counterclaim were hopeless; triable issues existed, principally whether the plaintiff fraudulently obtained the transfer of the suit land.

Reasoning

The court perused the defence, counterclaim, reply to defence and defence to counterclaim. The plaintiff had not sought to strike out the pleadings. The central triable issue was whether the plaintiff fraudulently obtained transfer of the suit land to justify rectification of the register. Fairness demanded the defendant be given her day in court.

p. 2

Legal principles established

#
  • A judge's discretion to set aside an ex parte judgment is wide and unfettered but must be exercised judiciously, not whimsically or capriciously.
  • The main consideration in setting aside an ex parte judgment is doing justice between the parties.

Court orders

#
  1. 1.Judgment delivered in favour of the plaintiff on 24th May 2017 set aside and the suit to be heard afresh on its merits
  2. 2.Plaintiff awarded thrown away costs of Kshs. 15,000/= to be paid by the defendant within 30 days, failing which the judgment of 24th May 2017 will stand reinstated and the defendant's defence and counterclaim will stand dismissed

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSections 1A, 1B and 3A
  • (former) Order IX rule 20 (as referenced in Shabir Din v Ram Parkash Anand)Order IX rule 20

Cases cited (3)

  • Patel v E. A Cargo Handling Services Ltd
    [1974] E.A 75
  • Shah v Mbogo
    [1967] E.A 116
  • Shabir Din v Ram Parkash Anand
    [1955] 22 EACA 48
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Bogonko Onchonya v Janet Nyanchama Nyangau [2018] KEELC 4256 (KLR)", Case Analysis (2018). Case No 1177 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4256/eng@2018-03-09

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