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ELCAllowedKisii ELC Suit (plaint amended 23rd September 2015)· [2019] KEELC 1362 (KLR)

Samwel Misati Oichoe & another v Charles Mayaka Gera & another [2019] KEELC 1362 (KLR)

Environment and Land Court
8 October 2019
JMJ. M. MutungiJOJ Onyango
2,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled orders made when the defendant missed a hearing, ruling everyone deserves a fair chance to present their land dispute.

What this practically means

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Executive summary

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This is a ruling on the 1st defendant's Notice of Motion dated 7th September 2018 in an Environment and Land Court suit at Kisii. The plaintiffs, registered owners of land parcel Majoge/Boochi/4658 acquired in 2011, sued to evict the defendants and restrain dealings with the parcel, alleging encroachment by the late Maria Nyaitondi Gera, owner of parcel 428, and her sons. The defendant denied the claim, asserting ownership of parcel 4206, which he said was secretly subdivided on 11th August 2011 to create parcel 4658, and had filed an adverse possession suit. When the defendants failed to attend the hearing on 23rd April 2018, the court heard the plaintiffs and, suo moto, directed the Land Registrar and County Surveyor to delineate the boundaries of parcels 4658 and 428 and report. Their joint report of July 2018 found no visible boundary and recommended amendment of the registers. The 1st defendant then applied for a stay of those orders, suspension of the report, and setting aside of the 23rd April 2018 proceedings, claiming he was never served with the hearing notice. Applying Shah v Mbogo and CMC Holdings Ltd v James Mumo Nzioki, the court noted an affidavit of service cast doubt on his claim, but found the defence, supported by mutation forms and the green card, raised triable issues on the subdivision of parcel 4206 which the Registrar's report did not address. The court allowed the application, set aside the 23rd April 2018 order, expunged the Registrar's report, directed the suit be heard afresh on merits, and ordered each party to bear their own costs of the application.

Key legal issues

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Whether to set aside the ex parte proceedings of 23rd April 2018 and the consequential boundary delineation orders and report

Holding

The application was allowed; the ex parte order and the Land Registrar's report were set aside because the defence raised triable issues concerning the subdivision of parcel 4206 that required ventilation at a formal hearing

Reasoning

The court applied Shah v Mbogo and CMC Holdings Ltd v James Mumo Nzioki on setting aside ex parte proceedings. Although an affidavit of service cast doubt on the defendant's claim of non-service, the defence asserted ownership of parcel 4206 and alleged fraudulent subdivision creating parcel 4658, supported by mutation forms and the green card. The Registrar's report did not address the nexus between parcels 4206 and 4658. The defence raised triable issues deserving a hearing on merits.

p. 4

Legal principles established

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  • The discretion to set aside ex parte proceedings is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructed or delayed justice
  • In setting aside ex parte proceedings the court must consider both the reasons for non-appearance and whether the applicant has a reasonable defence raising triable issues

Court orders

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  1. 1.Set aside and vacate the order issued on 23rd April 2018 directing the Land Registrar and Surveyor Kisii County to delineate and fix the boundaries between land parcel Majoge/Boochi/428 and 4658
  2. 2.The report by the Land Registrar and the Surveyor dated 25th July 2018 filed in court on 27th July 2018 is set aside and expunged from the record
  3. 3.The suit to be heard afresh on merits
  4. 4.Each party to bear their own costs of the application
Jurisdiction invoked
Inherent powers under Sections 1A, 3A and 63(e) of the Civil Procedure Act, Order 22 Rule 22 of the Civil Procedure Rules 2010 and Article 159 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, "Samwel Misati Oichoe & another v Charles Mayaka Gera & another [2019] KEELC 1362 (KLR)", Case Analysis (2019). Kisii ELC Suit (plaint amended 23rd September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1362/eng@2019-10-08

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