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ELCPartially AllowedMombasa ELC (case number not stated in judgment)· [2019] KEELC 4189 (KLR)

Kenya Ports Authority v G. Wayumba & 6 others [2019] KEELC 4189 (KLR)

Environment and Land Court
21 March 2019
884 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 6th and 7th defendants moved the court by a notice of motion dated 24th October 2018 seeking to set aside an ex-parte judgment dated 24th September 2018 and delivered on 5th October 2018, on grounds of material non-disclosure and nullity for want of jurisdiction, alleging the suit was sub-judice two earlier suits (Mombasa ELC Nos 497 and 498 of 2001) filed by the same plaintiff over the same suit properties. The plaintiff opposed, arguing the application was an abuse of process, that the judgment was a regular judgment after due service, and citing Court of Appeal authority. The court held that setting aside an ex-parte judgment is discretionary and guided by the Mbogo vs Shah principles: absence of undue delay, no obstruction of justice, non-service, and a good defence. On the sub-judice ground, the court held that section 6 of the Civil Procedure Act applies only to pending suits, and since this suit had proceeded to hearing and judgment, it could not be a nullity merely because other suits existed. The applicants neither denied service nor pleaded a good defence, so the grounds in the motion failed. Nonetheless, because the pending suits involved the same parties and subject matter and the applicants had filed defences therein, the court set aside the judgment as it related to the 6th and 7th defendants' titles, solely to fulfil the rules of natural justice and afford them a hearing. Costs of the application were awarded to the plaintiff.

Key legal issues

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01

Whether the ex-parte judgment was a nullity for want of jurisdiction due to pending suits

Holding

No. The sub-judice rule under section 6 applies only to pending suits; this suit had gone to hearing and judgment, so it was not a nullity.

Reasoning

Section 6 of the Civil Procedure Act governs sub-judice but applies only where the later suit is still pending. Here the suit proceeded to hearing and judgment. The applicants' reliance on the two 2001 suits therefore failed; the court noted the applicants would equally have faced a res judicata objection had the suit been dismissed.

p. 2
02

Whether service was denied or a good defence shown

Holding

No. The applicants did not question service and did not plead a good defence.

Reasoning

The applicants never challenged the mode of service of summons to enter appearance, and the plea in paragraph 16 of the supporting affidavit did not show non-service. Nor did they plead any defence to the claim, so the ordinary grounds for setting aside a regular judgment were not made out.

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03

Whether the court should nonetheless set aside the judgment

Holding

Yes, but only to fulfil the rules of natural justice, given pending suits with the same parties and subject matter in which the applicants have filed defences.

Reasoning

Although the applicants failed on their stated grounds, the court exercised its discretion to grant them a hearing because there were pending suits involving the same parties and subject matter, and allowing the applicants to be heard would enable a just determination of the disputes. The setting aside was expressly not based on the motion's grounds.

p. 2

Legal principles established

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  • A judgment in a suit that has proceeded to hearing is not a nullity merely because other suits over the same subject matter are pending; the sub-judice rule under section 6 of the Civil Procedure Act applies only while the suit is still pending
  • Setting aside an ex-parte judgment is discretionary and requires demonstration of established principles: no undue delay, no obstruction of justice, non-service, and a good defence

Court orders

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  1. 1.The judgment dated 24th September 2018 is set aside as it relates to the 6th & 7th defendants' titles Nos MSA/BLOCK CCVI/508 and MSA/BLOCK XXVI/928
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 6

Cases cited (4)

  • Henry Muthee Kadhurima vs Commissioner of Lands & Another (2015) eklr
    (2015) eKLR
  • Nelson Kazungu Chai & Others vs Pwani University College Malindi Civil Appeal No 78 of 2016
    Civil Appeal No 78 of 2016
  • Uhuru Highway Development Ltd vs CBK & 2 others (1995) eKLR
    (1995) eKLR
  • Mbogo vs Shah (1968) E.A 93
    (1968) E.A 93
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act (section 6 discussed); no constitutional provision cited

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, "Kenya Ports Authority v G. Wayumba & 6 others [2019] KEELC 4189 (KLR)", Case Analysis (2019). Mombasa ELC (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4189/eng@2019-03-21

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