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ELCPartially AllowedKwale ELC Appeal from ELC No. 8 of 2018· [2020] KEELC 1664 (KLR)

Hamisi Salim Dzila & another v Iddi Ganguma [2020] KEELC 1664 (KLR)

Environment and Land Court
22 July 2020
CYC.K. Yano
2,546 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave late defendants a second chance to file their defence, ruling that cases should be decided on merit, not technicalities.

What this practically means

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Executive summary

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The appellants appealed against the ruling of Honourable P. Wambugu, Senior Resident Magistrate, in Kwale ELC No. 8 of 2018 delivered on 25th January 2019, which dismissed their application dated 13th July 2018 seeking leave to enter appearance and file defence out of time and to set aside ex-parte orders issued on 20th June 2018. The appeal was canvassed by written submissions. The appellants contended they were never served with summons and pleadings, pointed to discrepancies in the affidavits of service, and relied on their draft defence which exhibited titles to the suit property in their names. The respondent countered that the appeal was defective, the defence a sham raising no triable issues, that service was duly effected, and that the appellants were guilty of unexplained laches. The court, as a first appellate court, framed two issues: whether the trial magistrate wrongly exercised his discretion in denying leave, and whether the appeal was merited. Relying on Order 10 Rule 11 and the Patel and Shah principles, the court found the process server's affidavits did not explain how he identified the defendants, that the proposed defence raised triable issues given the exhibited titles, that the trial magistrate failed to consider the explanation and failed to exercise his discretion judicially, and that no prejudice to the respondent was shown. The court allowed the appeal, set aside the ruling, allowed the notice of motion in terms of prayer 2 (leave to file defence within 14 days), but declined to set aside the conservatory ex-parte orders of 20th June 2018, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the trial magistrate erred in denying leave to enter appearance and file defence out of time

Holding

Yes - the trial magistrate failed to consider the explanation given by the appellants and failed to exercise his discretion judicially, reaching a wrong conclusion

Reasoning

The process server's affidavits did not indicate how he came to know the defendants or who pointed them out to him. The proposed defence raised triable issues, especially as the respondents exhibited titles of the suit property in their names. No prejudice to the respondent was demonstrated; allowing the defence would permit determination of the case on merit.

p. 3
02

Principles governing setting aside ex-parte judgment/regular judgment

Holding

The discretion under Order 10 Rule 11 is wide and unfettered; for a regular judgment, it is usually exercised only where a defence on the merits (a triable issue) is shown, together with consideration of prejudice and explanation for delay

Reasoning

Drawing on Patel v E.A. Cargo Handling and Shah v Mbogoh, the court applied the established tests: no limits on the discretion except that it is exercised on just terms; a triable issue suffices; the discretion is not designed to assist deliberate obstruction but to avoid injustice from accident, inadvertence or excusable mistake.

p. 3

Legal principles established

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  • The court has unfettered discretion to set aside an ex-parte judgment; the tests are whether there is a defence on merits, whether there would be prejudice to the plaintiff, and the explanation for any delay

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the subordinate court set aside and substituted with an order allowing the Appellants' notice of motion dated 13th July 2018 in terms of prayer 2 (leave to enter appearance and file defence out of time)
  3. 3.Appellants to file and serve their defence within 14 days of delivery of the ruling
  4. 4.Court declined to set aside the ex-parte orders issued on 20th June 2018 as they preserve the subject matter of the suit
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure RulesOrder 5 Rule 15
  • Civil Procedure RulesOrder 5 Rule 16
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 40 Rule 7

Cases cited (9)

  • Selle and Another –v- Associated Motor Boar Company Ltd and Other
    (1968) 1EA 123
  • Beatrice Wanjiru Kamuri –v- Jon Kibira Muiruri
    (2016)eKLR
  • the Owners of Motor Vessel “Lilian S” –v- Caltex Kenya Ltd
    (1989) KLR 1
  • Patel –v- E. A Cargo Handling Services Ltd
    (1974) EA 75
  • Giella –v- Cassman Brown & Co Ltd
    (1973) EA 360
  • Mrao –v- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 123
  • American Cynamid Co –v- Ethicon Ltd
    (1975) 1 ALL E.R
  • Filista Chemaiyo Sosten –v- Samson Mutai
    (2012)eKLR
  • Shah –v- Mbogoh
    (1967) EA 166
On appeal from
Senior Resident Magistrate's Court, Kwale
Kwale ELC No. 8 of 2018
Jurisdiction invoked
First appeal from the subordinate court (Environment and Land Court appellate jurisdiction)

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, "Hamisi Salim Dzila & another v Iddi Ganguma [2020] KEELC 1664 (KLR)", Case Analysis (2020). Kwale ELC Appeal from ELC No. 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1664/eng@2020-07-22

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