Abdullah Ali Nassir v Sophi Mwanghunda [2019] KEELC 2928 (KLR)
The bottom line
#A Mombasa court set aside a judgment won without the defendant's knowledge, allowing her to defend her land claim after paying modest compensation costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's failure to enter appearance and file a defence was excusable
The inadvertence was excusable and not intended to obstruct justice, given the unexplained gap in proof of the demand letter's service and the defendant's prompt move to court upon commencement of execution.
The process server's affidavit stated the defendant accepted service but declined to sign, yet the plaintiff did not explain how the demand letter was served or how the defendant was previously aware of the matter. The court found this missing link, combined with the defendant moving to court as soon as execution commenced, showed her request for a hearing was not designed to obstruct justice.
Whether the draft defence raises triable issues despite the plaintiff's certificate of lease
Yes - the defence denied the existence of the plot and claimed ownership through exclusive and uninterrupted possession for over 18 years.
Although the plaintiff held a certificate of lease, the draft defence denied the existence of plot No. 12519/1/MN and pleaded adverse possession of over 18 years. These allegations required determination at trial and constituted triable issues justifying leave to defend.
Whether failure to cross-examine the process server means non-service is uncontested
The plaintiff argued that absence of a cross-examination application meant service was unchallenged, but the court nonetheless examined the gaps in the service evidence.
The plaintiff submitted that having failed to apply to cross-examine the process server, the issue of non-service was not contested. The court did not decide this point definitively, instead assessing the overall fairness of denying the defendant a hearing in light of unexplained gaps in the demand letter's service.
Quantum of thrown away costs
Kshs25,000/= awarded instead of the Kshs100,000/= sought, based on the extent of work done before the ex-parte judgment.
Relying on the two authorities cited by the plaintiff, the court assessed the plaintiff's attendance in the registry three times and one court appearance by counsel, concluding that Kshs25,000/= was reasonable compensation for services rendered before the judgment was delivered.
Legal principles established
#- The court's discretion to set aside an ex-parte judgment is exercised to do justice, considering whether the default was deliberate or excusable and whether a triable issue is raised
- Leave to defend should not be refused where the default is not intended to obstruct the cause of justice and a triable defence exists
Court orders
#- 1.The judgment entered on 14th June 2017 is set aside and the defendant granted leave to defend the suit
- 2.The defendant is granted leave to file and serve her statement of defence within 14 days
- 3.The defendant shall pay the plaintiff thrown away costs of Kshs25,000/= within 30 days, in default the plaintiff is at liberty to execute
- 4.Each party to meet their own costs of prosecuting the application
- Jurisdiction invoked
- Inherent discretion of the court to set aside interlocutory (ex-parte) judgment and grant leave to defend under civil procedure (inherent power to undo injustice); no specific provision quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdullah Ali Nassir v Sophi Mwanghunda [2019] KEELC 2928 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2928/eng@2019-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.