Stephen Saramba Viraghi v Hillary Savari & another; Agnetta Mulama & another (Applicants) [2019] KEELC 1638 (KLR)
The bottom line
#A Kenyan land buyer's eviction of occupants was allowed after the court refused to undo a judgment the occupants ignored, despite claiming they were never served.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of service and setting aside ex parte judgment
Service was proper; the process server was clear that the 1st and 2nd defendants were known to him and refused to acknowledge service, so no sufficient cause was shown
The court perused the affidavits of service of 14th December 2017 and 26th September 2017 sworn by process server Eric Swahili, who stated the defendants were known to him and refused to acknowledge service. The court found service proper, held the defendants simply ignored court process, and applying the Shah v Mbogo and Esther Wamaitha Njihia line of authorities on sufficient cause, declined to exercise its discretion to set aside the ex parte judgment.
Effect of non-compliance with Order 9 rule 9
The firm of A.B.L Musiega & Company Advocates was in contravention of Order 9 rule 9, though the court still considered the setting-aside discretion under Section 3A
The respondent argued there was no suit before the court as the applicants were in contravention of Order 9 rule 9 (change of advocate after judgment requires court order or consent). The court quoted the rule and found the applicants' advocates clearly in contravention, citing John Langat v Kipkemoi Terer where the whole application was dismissed for such failure, but proceeded to consider the inherent jurisdiction to set aside.
Joinder after final judgment
Joinder is impermissible where the suit has been finalized and the setting-aside application dismissed; the application was overtaken by events
Order 1 rule 10(2) empowers joinder at any stage where a party's presence is necessary to effectually adjudicate the suit. However, since the suit was finalized, the setting-aside application dismissed, and a similar suit in Hamisi court had been dismissed, the court held there was no suit to be enjoined to and declined to go into the merits.
Execution of decree
The judgment stood unappealed and the application for execution by eviction was merited
The plaintiff sought execution of the decree of 13th June 2018, explaining that execution had been impossible because of Hamisi PMC No. 50 of 2018, which was dismissed after a preliminary objection was sustained. The respondents' non-disclosure objections did not prevail; the court found the judgment still stood and had not been appealed against.
Legal principles established
#- Setting aside an ex parte judgment is a matter of judicial discretion exercised to do justice between the parties
- The court must be satisfied either that the defendant was not properly served or that failure to appear was due to sufficient cause
- A change of advocate after judgment without an order of the court or consent under Order 9 rule 9 is a contravention that can vitiate the application
- Joinder of parties may be allowed at any stage, but not where the suit is finally disposed of and nothing remains to be done
Court orders
#- 1.The defendants'/applicants' application dated 13th June 2019 seeking setting aside of the ex parte judgment and leave to defend is dismissed with costs
- 2.The applicants' application dated 14th June 2019 seeking joinder as parties and setting aside of the judgment is dismissed with costs
- 3.The plaintiff's application dated 14th March 2019 for execution of the decree is granted with costs, with Yamuko Auctioneers to evict the 1st and 2nd defendants and the OCS Vihiga Police Station to ensure the eviction proceeds smoothly
- Jurisdiction invoked
- Article 50(1) and 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 1 rule 10, 10 rule 11, 12 rule 7, 45 and 50 rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Saramba Viraghi v Hillary Savari & another; Agnetta Mulama & another (Applicants) [2019] KEELC 1638 (KLR)", Case Analysis (2019). ELC Case of 2017 (Kakamega) - applications dated 13th June 2019, 14th June 2019 and 14th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1638/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.