Peter Wafula Khaemba v Mary Chelimo Sirima & 6 others [2019] KEELC 498 (KLR)
The bottom line
#The Eldoret Environment and Land Court refused to overturn a two-year-old land judgment because the defendant gave no credible explanation for her delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was served with summons and hearing notice
The court found from the affidavits of service that the applicant was served with summons to enter appearance and with the hearing notice for formal proof
The court perused the affidavit of service on record and found clear evidence of service of summons and of the hearing notice for the formal proof hearing of 18th September 2017. The applicant's claim that she only learned of the case on 4th July 2019 was disbelieved, given she admitted occupation of the suit land and subsequent orders had been granted in 2019, making the explanation implausible.
Whether the court should exercise its discretion to set aside the default judgment
The court declined to set aside the judgment because there was no explanation for the delay of over two years in bringing the application
The court applied the principles in Pithon Waweru Maina v Thuka Mugiria and Phillip Kiptoo Chemwolo & Mumias Sugar Co. Ltd v Augustine Kubende, and the test of defence on merits, prejudice and delay in Patel v E.A. Cargo Handling Services Ltd. Although the applicant claimed triable issues over 5.2 acres of LR Uasin Gishu/Ngenyilel/76, the absence of any explanation for the two-year delay and the disbelieved claim of ignorance of the proceedings led the court to refuse the discretionary relief.
Legal principles established
#- Setting aside a default judgment is not a right but an equitable remedy available at the court's discretion
- A defence need only raise a bona fide triable issue, not one that must succeed, for a default judgment to be set aside
- Even where service of summons is valid, judgment will be set aside if the defence raises triable issues
- The discretion to set aside default judgment must be exercised judiciously, considering the defence, prejudice to the plaintiff and explanation for delay
Court orders
#- 1.The application dated 8th July 2019 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Order 10 rule 11 of the Civil Procedure Rules, 2010 (inherent discretionary jurisdiction to set aside interlocutory judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wafula Khaemba v Mary Chelimo Sirima & 6 others [2019] KEELC 498 (KLR)", Case Analysis (2019). Not stated in judgment (Eldoret Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/498/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.