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ELCPartially AllowedNot stated in judgment· [2019] KEELC 2928 (KLR)

Abdullah Ali Nassir v Sophi Mwanghunda [2019] KEELC 2928 (KLR)

Environment and Land Court (trial-level application)
21 June 2019
1,102 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The defendant/applicant moved the court by Notice of Motion dated 7th August 2018 seeking to set aside an ex-parte judgment entered on 14th June 2017 and unconditional leave to defend a suit concerning plot No. 12519/1/MN situated within Nyali, Mombasa, of which the plaintiff claimed to be the purchaser of the 99-year leasehold interest. The applicant asserted she was never served with the demand letter, summons or plaint, that the judgment was irregularly obtained, and that execution would condemn her unheard and destroy her business. The plaintiff opposed, asserting proper service (including an affidavit of service deposing service on 27th July 2015 at the suit premises, which the applicant denied, saying she was at home nursing her baby) and arguing that the application was unmeritorious given his certificate of title. The court framed two issues: whether the defendant's inadvertence was excusable rather than intended to obstruct justice, and whether the draft defence raised a meritorious defence. Finding an unexplained gap in the plaintiff's proof of service of the demand letter, and that the defendant moved to court promptly upon commencement of execution, the court held her default was not intended to obstruct justice. It further found triable issues: the defence denied the plot's existence and pleaded exclusive and uninterrupted possession in excess of 18 years. The application was allowed on terms: leave to file and serve a defence within 14 days, thrown away costs of Kshs25,000/= payable within 30 days (in default execution to lie), and each party bearing its own costs of the application.

Key legal issues

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01

Whether the defendant's failure to enter appearance and file a defence was excusable

Holding

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.

Reasoning

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.

p. 2
02

Whether the draft defence raises triable issues despite the plaintiff's certificate of lease

Holding

Yes - the defence denied the existence of the plot and claimed ownership through exclusive and uninterrupted possession for over 18 years.

Reasoning

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.

p. 2
03

Whether failure to cross-examine the process server means non-service is uncontested

Holding

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.

Reasoning

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.

p. 2
04

Quantum of thrown away costs

Holding

Kshs25,000/= awarded instead of the Kshs100,000/= sought, based on the extent of work done before the ex-parte judgment.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The judgment entered on 14th June 2017 is set aside and the defendant granted leave to defend the suit
  2. 2.The defendant is granted leave to file and serve her statement of defence within 14 days
  3. 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. 4.Each party to meet their own costs of prosecuting the application

Authorities

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Legislation

  • Constitution of Kenyanot specified (referred to generally as 'the spirit of the constitution of Kenya')

Cases cited (4)

  • Shah –Versus- Mbogo
    (1967) E.A 116
  • Patel –versus- E. A Cargo Handling Services Ltd
    (1971) E.A.
  • Abdulhakim Abdulla Mohamed –versus- KPLC Co. Ltd
    (2016) eKLR
  • KPLC Co. Ltd –versus- Esther Wanjiru Wokabi
    (2014) eKLR
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

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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, "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.