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ELCDismissed· [2020] KEELC 1521 (KLR)

Flora Cherono v Mary Njihia & 7 others [2020] KEELC 1521 (KLR)

Environment and Land Court
21 July 2020
MNMwangi Njoroge
1,016 words in judgment
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The bottom line

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The Kitale Environment and Land Court refused to set aside a land judgment because the defendants were properly served and their proposed defence raised nothing new.

What this practically means

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Executive summary

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The 1st, 2nd, 4th and 5th defendants applied by notice of motion dated 12/2/2020 under Order 10 rule 11 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act for setting aside of the judgment entered on 31/7/2019, the proceedings leading to it, and all consequential orders. They contended they were never served with summons and were condemned unheard; that they live on the suit land with their families and hold titles to their respective portions; and that they had a good defence raising triable issues, having learnt of the suit from the plaintiff's eviction threats. The plaintiff opposed by replying affidavit, exhibiting an affidavit of service showing service by Jackson Nyongesa Simiyu on 27th October 2015 under the watch of village elder Josephat Mutori, and contending the application was an afterthought aimed at denying her the fruits of her judgment. Relying on Patel v EA Cargo Handling Services Ltd, the court held it had an unfettered discretion but would not set aside a regular judgment absent a triable issue. The affidavit of service satisfied the court that all applicants were served; the marriage of the 2nd applicant to the 3rd defendant, who appeared and participated in the hearing, made non-awareness improbable, and the applicants filed no further affidavit to controvert the plaintiff's averments. The draft defence raised no triable issues because the applicants' titles descended from the irregular subdivision whose mother titles had been cancelled after trial. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether there was proper service of summons on the applicants

Holding

Service was proved; the court was satisfied the applicants were all served with summons and plaint

Reasoning

The affidavit of service of Jackson Nyongesa Simiyu, filed on 19th April 2016, was on the court record and exhibited by the plaintiff. The applicants did not file a further affidavit to controvert the strong averments in the replying affidavit. The process server expressly stated that Grace Abeni was served away from her husband, whose memorandum of appearance was filed as early as 24/2/2014, making non-awareness improbable.

p. 2
02

Whether the draft defence raises triable issues justifying setting aside the judgment

Holding

The draft defence raised no triable issues; the applicants' titles descended from an irregular subdivision whose mother titles were cancelled after trial

Reasoning

Although a defence on the merits need only raise a triable issue, the applicants' titles were products of the irregular subdivision found to have robbed the plaintiff of her land and were included in the cancellation order. The proposed defence raised no issues different from those already determined at the hearing, so it could not be a basis for setting aside the judgment.

p. 2

Legal principles established

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  • A court has an unfettered discretion to set aside its judgment, but a regular judgment will not usually be set aside unless there is a defence raising a triable issue

Court orders

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  1. 1.The application dated 12/2/2020 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure ActSections 1A, 1B, 3 & 3A

Cases cited (1)

  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules (2010), Sections 1A, 1B, 3 & 3A of the Civil Procedure Act

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, "Flora Cherono v Mary Njihia & 7 others [2020] KEELC 1521 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1521/eng@2020-07-21

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