Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Chamber Summons dated 22nd October 2018)· [2019] KEELC 3023 (KLR)

Joseph Kiptonui Ruto v Annah Maritim & another [2019] KEELC 3023 (KLR)

Environment and Land Court
29 May 2019
JOJ.M Onyango
1,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court set aside a default judgment because land disputes deserve a full hearing, but only if defendants pay costs and file a defence fast.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kericho on a Notice of Chamber Summons dated 22nd October 2018 in which the Defendants sought leave for the firm of Oboso & Company Advocates to come on record in place of M/S Cherutich & Co Advocates, setting aside of the default judgment entered on 19th April 2018 and all consequential orders, leave to file a defence out of time, and costs. The 1st Defendant swore she was never served with summons and disowned the memorandum of appearance and defence filed by Cherutich & Co Advocates, annexing an affidavit of the advocate stating he was instructed by her son and never met her. The Plaintiff opposed, asserting both defendants were served with summons which the 1st Defendant signed, and that appearance and defence had been duly filed on the defendants' behalf. The court framed two issues: change of advocates and setting aside the ex-parte judgment. Leave to come on record was granted without contest. On setting aside, the court applied the principles in Yamko Yadpaz Industries Ltd v Kalka Flowers and Patel v East Africa Cargo Handling Services Ltd. Although the judge had reservations about the 1st Defendant's account of service and instructions, the court held that land matters ought to be heard on the merits and that the draft defence raised triable issues. The ex-parte judgment was set aside conditionally: the Defendants were to pay thrown away costs of Kshs. 40,000/= within 21 days, failing which the orders would lapse, and to file and serve their defence and comply with Order 11 within 30 days. Costs of the application were awarded to the Applicants against themselves, i.e. borne by the Applicants.

Key legal issues

#
01

Change of advocates on record

Holding

Leave granted without contest

Reasoning

The first issue was not contested by the Plaintiff. The court granted leave for the firm of Oboso & Co Advocates to come on record for the Defendants in place of Cherutich & Co Advocates, noting that the incoming firm had annexed an affidavit from the outgoing advocate.

p. 2
02

Whether the ex-parte judgment should be set aside

Holding

Set aside on terms - payment of thrown away costs and filing of a defence within 30 days

Reasoning

The court applied the principles in Yamko Yadpaz Industries Ltd v Kalka Flowers and Patel v East Africa Cargo Handling Services Ltd. Despite reservations about the 1st Defendant's averments on service and instructions to the erstwhile advocates, the court held that land matters ought to be heard on the merits and that the draft defence raised triable issues. Justice to the plaintiff was secured by conditional terms.

p. 2

Legal principles established

#
  • The court's discretion to set aside an ex-parte judgment is wide and free, to be exercised justly to do justice to the parties, and is not designed to assist a party who deliberately sought to obstruct or delay the course of justice
  • A regular judgment will not usually be set aside unless the applicant demonstrates a defence on the merits raising a triable issue
  • The court has no discretion to maintain a judgment where there was no proper service

Court orders

#
  1. 1.Leave granted to the firm of Oboso & Co Advocates to come on record for the Defendants in place of the firm of Cherutich & Co Advocates
  2. 2.Ex-parte judgment of 19/04/2018 and all consequential orders set aside on condition that the Defendants pay the Plaintiff thrown away costs of Kshs. 40,000/= within 21 days, failing which the orders shall automatically lapse
  3. 3.Defendants to file and serve their Defence and comply with Order 11 of the Civil Procedure Rules within 30 days
  4. 4.Costs of the application to be borne by the Applicants

Authorities

#

Legislation

  • Civil Procedure RulesOrder 11

Cases cited (7)

  • Yamko Yadpaz Industries Ltd Vs Kalka Flowers
    2013 KLR
  • Maina Vs Mugiria
  • Shah V Mbogo
    1967 EA 116
  • Mbogo V Shah
    1967 EA 93
  • Kanji Naran V Velji Ramji
    1954 21 EACA 20
  • Smith V Middleton
    1972 SC 30
  • Patel V East Africa Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Inherent discretion to set aside ex-parte judgment under the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Kiptonui Ruto v Annah Maritim & another [2019] KEELC 3023 (KLR)", Case Analysis (2019). Not stated in judgment (Chamber Summons dated 22nd October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3023/eng@2019-05-29

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