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ELCPartially AllowedNot stated in judgment· [2020] KEELC 1560 (KLR)
Celina Muthoni Kithinji & 5 others v Safiya Binti Swale & 8 others [2020] KEELC 1560 (KLR)
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#What this practically means
#Executive summary
#This was a Notice of Motion dated 24th April 2019 by the respondents seeking to set aside an ex-parte judgment delivered on 15th March 2018 in an originating summons concerning land, and for leave to file their defence. The respondents, through the affidavit of Fadhili Binti Mohamed, deponed that they were never served with summons, only learning of the case when the decree was issued and an application filed to have the Land Registrar register the applicants as owners of the suit property. They asserted continuous occupation of the land and that most respondents were already deceased when sued, attaching death certificates. The applicants, through Celina Muthoni Kithinji's replying affidavit, asserted that service was effected by substituted service via advertisements in the Standard Newspaper on 15th December 2016 and 12th January 2017, and denied the respondents' occupation. The court framed a single issue: whether the application met the threshold for setting aside ex-parte judgment under Order 10 Rule 11 of the Civil Procedure Rules. Relying on Patel v E.A. Cargo Handling Services Ltd and Shah v Mbogo, the court held that although substituted service was effected, some respondents were deceased at the time and could not have read newspaper advertisements; further, the respondents' claim of long occupation raised a triable issue. The court allowed the application, set aside the judgment and decree of 15th March 2018, directed cancellation of the provisional title issued to the applicants, allowed the respondents 14 days to file their response to the originating summons, and ordered costs in the cause.
Key legal issues
#01
Whether the ex-parte judgment of 15th March 2018 should be set aside
Holding
Yes - the judgment raised triable issues and service was defective as some respondents were already deceased at the time of substituted service
Reasoning
The court applied Order 10 Rule 11 and the Patel and Shah thresholds. Though substituted service had been effected by newspaper advertisement, some respondents were deceased at the time and could not have read the advertisement. The respondents also deposed that they had been in occupation of the suit land since time immemorial and that the applicants were strangers, which the court found raised a triable issue warranting exercise of discretion in favour of the respondents.
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Legal principles established
#- A court may set aside an ex-parte judgment on such terms as are just, where a triable issue is raised
- Service effected on deceased persons cannot be effective service
Court orders
#- 1.The judgment and decree given herein on 15th March 2018 be and is hereby set aside
- 2.The Land Registrar be and is hereby directed to cancel the provisional title issued to the applicants pursuant to the said decree
- 3.The respondents to file and serve their response to the originating summons within 14 days of the delivery of this ruling
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Inherent discretion under Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Celina Muthoni Kithinji & 5 others v Safiya Binti Swale & 8 others [2020] KEELC 1560 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1560/eng@2020-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.