Reuben Chelagat v Paulina Kobilo Kipkelwon [2020] KEELC 401 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a land judgment won without the owner's participation, but made her pay costs for ignoring court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons was properly effected so as to sustain the ex parte judgment
The court found that the Defendant had been served, as detailed in the process server's affidavits of service, and the draft replying affidavit did not displace that evidence.
The process server, K. Jackson Cheburet, swore affidavits stating that on 17th May 2018 the Plaintiff accompanied him to the Defendant's home at Kapsoo, pointed out her house, and service was effected with a photograph taken confirming her identity. The Defendant disputed the affidavit of service but offered no contrary evidence beyond her assertion. The Deputy Registrar had also on 24th August 2018 confirmed service and non-filing of defence. The court therefore accepted service as proved.
Whether the Defendant raised a good defence with triable issues
The draft replying affidavit showing the Plaintiff was a lessee from 1989 whose lease expired in 1993 amounted to a reasonable defence to the adverse possession claim, warranting setting aside the judgment.
The Defendant's draft replying affidavit deponed that the Plaintiff leased the suit land from 21st January 1989 for five years expiring in 1993, after which it was leased to two other persons before her family took over use. The court held this to be a reasonable defence to a claim of adverse possession since 1983, since a leaseholder cannot be in adverse possession during the lease. That raised triable issues sufficient to put the Defendant on trial of the suit rather than condemn her unheard.
Legal principles established
#- A defendant who establishes a reasonable defence raising triable issues may have an ex parte judgment set aside, even where service was effected, with costs compensating the plaintiff.
Court orders
#- 1.The judgment delivered on 25th October, 2018 and all consequential orders set aside.
- 2.Defendant granted leave to defend the suit and to file and serve her replying affidavit within 21 days.
- 3.Plaintiff at liberty to file and serve a further affidavit within 21 days after service if need be.
- 4.Defendant to pay the Plaintiff thrown away costs of Kshs.20,000 within thirty (30) days, in default of which the other orders stand vacated and the judgment of 25th October, 2018 is reinstated.
- Jurisdiction invoked
- Inherent jurisdiction to set aside ex parte judgments under the Civil Procedure Act and Rules (application under certificate of urgency; Order 5 Rule 15 and Order 7 Rule 1 of the Civil Procedure Rules cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Chelagat v Paulina Kobilo Kipkelwon [2020] KEELC 401 (KLR)", Case Analysis (2020). Notice of Motion dated 12th August, 2020 (within originating summons dated 8th May, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/401/eng@2020-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.