James Mayeku Makitoni & 3 others v Wenslaus Mukhwana & 3 others [2019] KEELC 1007 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid defence on the record warranting setting aside the judgment
Yes; there was a discernible though irregularly presented defence (counsel's supporting affidavit with an unsigned draft replying affidavit and a judicial review ruling) raising a triable issue.
The court examined the affidavits filed in support of the earlier setting-aside application, noting the unsigned draft affidavit of Teresina Musebe annexed to her advocate's affidavit and the ruling in Bungoma HC Misc. Appl. No. 44 of 1997 which had quashed a land disputes tribunal award. It found these demonstrated instructions and a prima facie defence raising a triable issue, satisfying the main consideration for setting aside.
Whether reinstatement of the judgment was justified
No; the reinstatement erroneously relied on non-payment of costs when the consent of 6/5/2002 setting aside judgment was unconditional, resulting in a failure of justice.
The record showed judgment was not restored for want of defence but for want of satisfaction of costs of Kshs 45,000/-. The consent never made setting aside conditional on payment of costs. Reinstatement on that sole ground was oppressive and denied the defendants a hearing on the merits; review was therefore merited.
Whether the application was res judicata as a second setting-aside application
No; intervening factors made it a fresh application.
Although Mburu Kinyua v Gachini Tuti holds that a second application based on facts known at the time of the first is res judicata, here the judgment had been set aside by consent and later reinstated, constituting intervening factors that rendered the present application fresh and not barred.
Whether relief could issue in respect of a subdivided parcel whose register was closed
Yes; orders may extend to all resultant subdivisions of the original parcel.
Following Paul Pkemoi Kide v Philip Kimutai Kibor, the court held that although L.R. East Bukusu/North Nalondo/1658 no longer exists having been subdivided, the citation of the original number targets all land comprised in it, and the court may issue orders covering all the subdivisions in the interests of justice.
Legal principles established
#- A court has a very wide discretion in setting aside judgments; a defence need not succeed, it need only raise a triable issue
- A second application to set aside judgment is not res judicata where intervening factors such as a consent setting aside and subsequent reinstatement have occurred
- A consent order binds parties only to the extent of its stated terms; where setting aside was not conditional on payment of costs, reinstatement of judgment for non-payment of costs was erroneous
- An order may properly be framed to cover all resultant subdivisions of a parcel whose register has been closed on subdivision
Court orders
#- 1.The application dated 16/6/2019 is granted and the judgment entered in this matter is set aside
- 2.The matter to proceed expeditiously to a full hearing on the merits
- 3.A status quo order to be maintained in respect of dealings in the suit property, extending to all resultant parcels carved out of Land Reference No. East Bukusu/North Nalondo/1658, howsoever named or described
- 4.The orders issued on 6/2/2019 in the application dated 25/9/2019 are set aside ex debito justitiae
- 5.That application (by the administrator of Michael Watamba) is dismissed, the applicant not having been a principal party to the suit
- 6.Costs of the application provided for the applicants (prayer 4 of the application)
- Jurisdiction invoked
- Inherent discretion to set aside judgment / review under the Civil Procedure Rules (the judgment frames the application as one for review and setting aside of judgment entered in default of defence)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mayeku Makitoni & 3 others v Wenslaus Mukhwana & 3 others [2019] KEELC 1007 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1007/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.