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ELCPartially AllowedChamber Summons dated 17th June 2019 (in OS dated 21st October 2010)· [2019] KEELC 622 (KLR)

Elisha Njeru James v Felister Ngima Elijah (being sued as the administratrix of the estate of Elijah Njagi Henry) [2019] KEELC 622 (KLR)

Environment and Land Court
17 October 2019
YAY.M. Angima
1,660 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a default land judgment despite proper service, giving the defendant one last chance to be heard on strict conditions.

What this practically means

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Executive summary

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The Defendant brought a chamber summons dated 17th June 2019 under Order 10 Rule 11, Order 12 Rule 7 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act seeking to set aside an ex-parte judgment entered on 22nd January 2019 and the consequent decree of 25th February 2019, contending she was never served with summons to enter appearance, pleadings or notice of entry of judgment. The Plaintiff opposed, asserting service at all material times, noting the Defendant had earlier filed a defence through an advocate in 1996 and then lost interest, and produced affidavits of service. The court framed a single question: whether the Defendant had made out a case for setting aside the ex-parte judgment. Examining the affidavits of service of G.M. Karuoro (service of the originating summons at Munyutu village on 6th November 2012, accepted by thumb print) and Monica Kimemu (service of the hearing notice on 30th May 2018 accompanied by two police officers, with service refused), the court found the Defendant had responded only with bare denials, without engaging the specific particulars. It was satisfied service was duly effected and the judgment regular. Nevertheless, applying the principles in Patel v E.A. Cargo Handling Services Ltd, and invoking the constitutional right to a fair hearing under Article 50, the court exercised its wide discretion to set aside the judgment on conditions: payment of thrown away costs of Kshs. 20,000/- within 21 days, and filing of a response, witness statements, documents and trial bundle within 21 days, failing which the application would stand dismissed and the ex-parte judgment reinstated without further order.

Key legal issues

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01

Whether the Defendant was served with court process

Holding

The court found service of the originating summons and hearing notice duly effected and the judgment regular

Reasoning

The court examined the affidavits of service of G.M. Karuoro (originating summons served 6th November 2012 with thumb-printed acceptance) and Monica Kimemu (hearing notice service on 30th May 2018 accompanied by police officers). The Defendant made bare denials, failing to respond to the specific particulars of the affidavits, which the court found insufficient to displace the evidence of service.

p. 2
02

Whether the ex-parte judgment should nevertheless be set aside

Holding

Yes, conditionally, to accord the Defendant a hearing despite regular service

Reasoning

Although sufficient cause for non-appearance was not shown, the court exercised its wide discretion under Order 10 Rule 11 and Order 12 Rule 7 to set aside the judgment on terms, invoking the constitutional right to a fair hearing under Article 50. Default of the conditions would result in automatic reinstatement of the judgment without further order.

p. 2

Legal principles established

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  • The court has a wide and unfettered discretion to set aside a default judgement, even where regularly obtained, on such terms as may be just
  • The right to a fair hearing is a constitutional right justifying setting aside even a regular default judgment

Court orders

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  1. 1.Ex-parte judgement dated 22nd January 2019 set aside on conditions
  2. 2.Defendant to pay thrown away costs of Kshs. 20,000/- within 21 days
  3. 3.Defendant to file and serve a response to the originating summons, witness statements and documents within 21 days
  4. 4.Defendant to file and serve a bound and paginated trial bundle within 21 days
  5. 5.Court to give directions and fix hearing date on delivery of the ruling
  6. 6.If the Defendant defaults, the chamber summons dated 17th June 2019 shall stand dismissed and the ex-parte judgement reinstated without further order

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure Act (Cap. 21)Section 3
  • Civil Procedure Act (Cap. 21)Section 3A
  • Constitution of KenyaArticle 50

Cases cited (3)

  • Girado V Alam & Sons (U) Ltd
    [1971] EA 4480
  • Patel V E.A. Cargo Handling Services Ltd
    [1974] EA 75
  • Mbogo & Another V Shah
    [1968] E.A. 93
Jurisdiction invoked
Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act (Cap. 21); Article 50 of the Constitution of Kenya

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, "Elisha Njeru James v Felister Ngima Elijah (being sued as the administratrix of the estate of Elijah Njagi Henry) [2019] KEELC 622 (KLR)", Case Analysis (2019). Chamber Summons dated 17th June 2019 (in OS dated 21st October 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/622/eng@2019-10-17

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