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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 2968 (KLR)

Nakuru Automobile House Ltd v Lawrence Maina Mwangi & another [2019] KEELC 2968 (KLR)

Environment and Land Court
12 June 2019
DOD. O. Ohungo
1,238 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 gave a defaulting state agency one last chance to defend a land case, but only on strict conditions and with costs.

What this practically means

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Executive summary

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The 2nd defendant, the State through the State Counsel Kiprotich Kirui, sought by Notice of Motion dated 3rd May 2018 to have the suit heard inter partes, to be given unconditional leave to file a defence and to tender arguments after the court had closed the defence cases on 6th March 2018 and directed final submissions. The 2nd defendant had not entered appearance or participated in the hearings despite affidavits of service showing it was served with hearing notices, though it claimed to have been served with expired summons. The 1st defendant opposed the application as an afterthought and abuse of process, while the plaintiff's counsel, Dominic Mukui Kimatta, conceded inadvertent failure to serve hearing notices and supported the applicant being heard given the competing titles to the suit property. The court treated the application as one for setting aside where there had been service, and applied the principles restated by the Court of Appeal in James Kanyiita Nderitu v Marios Philotas Ghikas. Holding that the 2nd defendant, as custodian of land ownership records, should be heard where both other parties claim titles, the court found it in the interest of justice to set aside only the order closing the defence cases - not all past proceedings - because the applicant was partly to blame. The setting aside was conditional: the 2nd defendant was to file its defence and comply with Order 11 within 14 days, failing which the order would be vacated and the application dismissed with costs. Costs of the application were awarded to the 1st defendant.

Key legal issues

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01

Whether the order closing the defence cases should be set aside where the applicant had notice of the suit

Holding

The order was set aside because the applicant, as custodian of land ownership records, should be heard in a dispute where both other parties claim titles to the suit property, but only prospectively - past proceedings were not disturbed

Reasoning

The court acknowledged service of hearing notices on the applicant, so treated the application as a setting-aside application after due service. Applying the James Kanyiita Nderitu principles, it weighed the interest of justice: the applicant holds the land registry records and its evidence would assist determination of the real issues. The applicant was partly to blame for non-participation, so the setting aside was limited and conditional on filing a defence within 14 days, with costs to the 1st defendant.

p. 2

Legal principles established

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  • Where a party was served with summons or hearing notices, an application to set aside is governed by the principles in James Kanyiita Nderitu, including the reason for default, lapse of time, triable issues, prejudice and the interest of justice

Court orders

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  1. 1.The order of 6th March 2018 closing the defence cases and allowing for filing of written submissions is set aside
  2. 2.Costs of Notice of Motion dated 3rd May 2018 are awarded to the 1st defendant and shall be borne by the 2nd defendant
  3. 3.The 2nd defendant to file and serve statement of defence and comply with Order 11 of the Civil Procedure Rules within 14 days, failing which the setting aside order stands vacated and the Notice of Motion stands dismissed with costs to the 1st defendant
  4. 4.Further directions regarding disposal of the matter and possible filing of further compliance documents to be given in due course depending on the 2nd defendant's compliance

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
Jurisdiction invoked
Inherent discretion of the court under Order 10 rule 11 of the Civil Procedure Rules to set aside orders/judgments entered after due service

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, "Nakuru Automobile House Ltd v Lawrence Maina Mwangi & another [2019] KEELC 2968 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2968/eng@2019-06-12

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