Grace Wairimu Gakio v Emily Chelagat Kurgat & 2 others [2019] KEELC 3948 (KLR)
The bottom line
#A Kenyan land court let a defendant join a case after default judgment, but only if he quickly filed a defence and paid costs.
What this practically means
#Executive summary
#Key legal issues
#Properness of service of summons on the 3rd defendant
Service was found to have been properly effected; the 3rd defendant failed to summon the process server to dispute the affidavit of service.
The court compared the supporting and replying affidavits and found them to indicate proper service under the rules. The applicant's assertion that he did not reside at the place of service, and that the summons were not among documents served per the process server's affidavit, was not substantiated because the applicant never summoned the process server for cross-examination nor made any police report.
Whether leave to defend should be granted notwithstanding proper service
Leave to defend was granted as a conditional indulgence, not as of right, in the interest of justice.
Relying on Patel vs E.A. Cargo Handling Services and Shah vs Mbogo, the court exercised its wide discretion to do justice between the parties. Although it agreed with the plaintiff that the application was a ploy by the defendants to derail the process, it met the defendant halfway by permitting a defence on terms including thrown away costs and cross-examination of the plaintiff's witnesses.
Existence of a triable issue (ownership/contributory negligence)
The applicant's claim of ownership of the suit property via purchase from David Keter was noted, justifying conditional leave to defend.
The 3rd defendant deponed that he is the proprietor of Chemalal/Baharini Provisions Plot No. 212 (C), having purchased it from David Keter, which raises an issue on the plaintiff's trespass claim. The court did not set aside the judgment outright but allowed the defence to be filed within 15 days on conditions, with the order lapsing on non-compliance.
Legal principles established
#- The court's discretion to set aside or vary an ex parte judgment is unlimited but must be exercised on such terms as are just, with the main concern being to do justice to the parties.
- The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice.
- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend; a triable issue need not succeed, only raise a prima facie defence.
Court orders
#- 1.The 3rd defendant allowed to file a defence within 15 days
- 2.The 3rd defendant to pay thrown away costs of Kshs. 15,000/- to the plaintiff within 20 days
- 3.The 3rd defendant allowed to cross-examine the plaintiff and her witnesses
- 4.Failure to comply with the above terms, the order shall lapse
- Jurisdiction invoked
- Inherent discretion of the court to set aside or vary ex parte judgment under the Civil Procedure Rules (Order 5 on service of summons referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wairimu Gakio v Emily Chelagat Kurgat & 2 others [2019] KEELC 3948 (KLR)", Case Analysis (2019). Not stated in the judgment (Environment and Land Court suit at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3948/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.