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ELCAllowedAppeal from Baricho PMCC No. 1 of 2010· [2019] KEELC 2216 (KLR)

Sammy Gituru Maganjo v Rebecca Wangithi Ndimu& 2 others [2019] KEELC 2216 (KLR)

Environment and Land Court
17 July 2019
ECE.C. Cherono
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that land cases cannot be decided without hearing the defendant—default judgments taken wrongly were set aside.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kerugoya against a ruling of Hon. S. Jalang'o SRM delivered on 25th June 2015 in Baricho PMCC No. 1 of 2010, dismissing the Appellant's application to set aside an interlocutory judgment entered against him. The underlying suit concerned land parcel KIINE/GACHARU/93 and resultant titles KIINE/GACHARU/967 and 968, in which the Plaintiffs sought cancellation of entries and registration in their favour. The Appellant, the 2nd Defendant below, contended that service of summons was irregular - the process server allegedly served men when the Defendants were women - and that he had a credible defence. E.C. Cherono J held that under Order 10 Rule 9 CPR no interlocutory judgment could be entered in land disputes where a defendant does not enter appearance; the Plaintiff should instead have set the suit down for hearing with service on all parties. The trial court's entry of interlocutory judgment and conduct of formal proof was contrary to the rules. The trial magistrate also erred in failing to address the disputed service, including by not summoning the process server for cross-examination on his affidavit of service. Relying on Peter Wekesa v Peter Wangusi, Karatina Garments Ltd v Nganarua, and Beatrice Wambui Mukunyi v Danson Maina Njuguna, the court held that land disputes should be decided on merit rather than technicalities and that the right to be heard should only be curtailed in the most deserving cases. The appeal was allowed with each party bearing their own costs of both the trial court and the appeal, the mistake not being attributable to the parties.

Key legal issues

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01

Regularity of service of summons and the trial court's entry of interlocutory judgment

Holding

The trial court acted contrary to Order 10 Rule 9 CPR by entering interlocutory judgment instead of setting the suit down for formal hearing with service on all parties.

Reasoning

The court read Order 10 Rule 9 CPR as prohibiting interlocutory judgment in land disputes where a defendant does not enter appearance. The Plaintiff instead should have set the suit down for hearing and served all parties. Entry of interlocutory judgment and formal proof was therefore contrary to the rules of procedure.

p. 2
02

Right to be heard where service is disputed

Holding

The trial magistrate erred in failing to investigate the disputed service, including by summoning the process server for cross-examination, and in denying the Appellant a hearing.

Reasoning

Weighty issues had been raised on the regularity of service and the strength of the defence. The trial magistrate failed to direct his mind to these and should have ordered the process server to be summoned for cross-examination on his affidavit of service. Denial of the right to be heard was not a just way of resolving the dispute.

p. 3

Legal principles established

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  • No interlocutory judgment may be entered in Environment and Land disputes where a party does not enter appearance; the Plaintiff must set the suit down for hearing and serve all parties.
  • In land disputes, courts should avoid deciding on technicalities and must consider a draft defence in applications to set aside ex-parte judgments.

Court orders

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  1. 1.Appeal allowed
  2. 2.Each party to bear his own costs of both the trial Court and the appeal

Authorities

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Legislation

  • Environment and Land Court Act
  • Civil Procedure RulesOrder 5 Rule 15(2)
  • Civil Procedure RulesOrder 10 Rule 9

Cases cited (12)

  • CMC Holdings Ltd vs Nzioki
    (2014) eKLR
  • James Moenga Nyakweba & 2 Others vs Jairo Atenya Asitiba
    (2012) eKLR
  • Beranco Arabe Espanol vs Bank of Nganda
    (1999) 2 EA 22
  • Beatrice Wambui Mukunyi vs Danson Maina Njuguna & 4 Others
    Civil Appeal No. 41 of 2011 (Embu); HCCA No. 41 of 2011 (2013) eKLR
  • Peter Wekesa vs Peter Wangusi
    Civil Appeal No. 62 of 2003
  • Henry Njoroge Kamau vs Kenya Power & Lighting Co. Ltd.
    (2013) eKLR
  • Patel vs Cargo Holdings Services Ltd.
    (1974) EA 75
  • Mbogo & another vs Shah
    (1968) EA 93
  • Sebel District Administration vs Gasyah
    (1968) EA 300
  • Maina vs Kariuki
    (1984) KLR 407
  • Pravinchandra Jamnadas Kakad vs Lucas Oluoch Mumia
    (2015) eKLR
  • Karatina Garments Ltd. vs Nganarua
    (1976) KLR 94
On appeal from
Senior Resident Magistrate's Court, Baricho
PMCC No. 1 of 2010
Jurisdiction invoked
First appeal under the Environment and Land Court Act No. 19 of 2011

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, "Sammy Gituru Maganjo v Rebecca Wangithi Ndimu& 2 others [2019] KEELC 2216 (KLR)", Case Analysis (2019). Appeal from Baricho PMCC No. 1 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2216/eng@2019-07-17

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