Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2020] KEELC 1753 (KLR)

Pamela Waithera Mburu v County Government of Kajiado [2020] KEELC 1753 (KLR)

Environment and Land Court
7 July 2020
2,106 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan county government lost its bid to overturn a court judgment after failing to participate in the case, because proof of service and no draft defence doomed its application.

What this practically means

#

Executive summary

#
The County Government of Taita Taveta, as Defendant, moved the court by an amended Notice of Motion dated 29th October 2019 seeking, among other things, a stay of execution, a stay of the Plaintiff's judicial review application, the summoning of the Plaintiff's process server for cross-examination, and the setting aside of the ex parte judgment delivered on 14th March 2018 together with the decree, so that it could file its defence and have the suit heard de novo. The Defendant claimed it only learnt of the suit during a legal audit, that it was never served with the notice of entry of judgment or proclamation, and that the Plaintiff was a person of unknown means. The Plaintiff opposed the application, asserting proper service on the County Secretary's office of all processes, including a memorandum of appearance filed by the Defendant's own County Attorney, and noting that the Defendant had partially implemented the decree by closing a road across her land while withholding the decretal sum. The court framed one issue: whether the judgment and decree should be set aside. Relying on Order 10 Rule 11, Patel v EA Cargo Handling Services and James Kanyiita Nderitu, the court held that service was conclusively proved by affidavits of service and the County Secretary's receipt stamps, that the Defendant had filed a memorandum of appearance but no defence, that no draft defence raising triable issues was annexed, and that its excuse was unconvincing. The application was accordingly dismissed with costs to the Plaintiff.

Key legal issues

#
01

Whether the ex parte judgment and decree should be set aside under Order 10 Rule 11

Holding

The application failed because service was proven and no draft defence raising triable issues was presented

Reasoning

Order 10 Rule 11 confers a discretion to set aside a judgment on such terms as are just. Where the judgment is regular, the applicant must show a defence on the merits raising a triable issue, and explain the default. Here the court record showed the Defendant was served with summons, mention notices, notice of entry of judgment, decree, certificate of order against the government and taxation notice, all received through the County Secretary's office, and its own County Attorney had filed a Memorandum of Appearance. The Defendant also partially complied with the decree by closing the road. No draft defence was annexed, so no triable issue was demonstrated and the discretion was not exercised in its favour.

p. 3
02

Whether the Defendant was served with summons and subsequent notices

Holding

Service on the County Secretary's office was proven by the affidavits of service and receipt stamps on the documents

Reasoning

The Defendant claimed ignorance of the suit, but the court record showed a Memorandum of Appearance filed by its County Attorney and receipt stamps on multiple documents including the Notice of Entry of Judgment and the Decree. The Defendant's own affidavit admitted that the County Secretary receives voluminous documents which may not be dispatched in time to departments. That internal administrative difficulty could not defeat proven service. The notice on mode of service was issued only after appearance had been entered and was thus ineffective.

p. 2

Legal principles established

#
  • Affidavits of service together with evidence of receipt stamps on court documents constitute conclusive proof of service
  • A notice on mode of service issued after a party has entered appearance cannot prevent service upon the office that had been serving that party

Court orders

#
  1. 1.The Defendant's Notice of Motion dated 29th October 2019 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 12 Rule 2(c)
  • Civil Procedure RulesOrder 45 Rule 1(a)
  • Civil Procedure RulesOrder 51 Rules 1, 3 and 4
  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (7)

  • Patel Vs E A Cargo Handling Services Ltd
    (1974) EA 75
  • Shah Vs Mbogo
    (1967) EA 166
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • Richard Murigu Wamai Vs Attorney General & Another
    (2018) eKLR
  • Frigoken Limited Vs Value Pak Food Limited
    (2011) eKLR
  • Mary Mucugu Kinyua Vs Joseph Irungu Mwangi & Another
    (2019) eKLR
  • James Kanyiita Nderitu & Another
    [2016] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 2(c), Order 45 Rule 1(a) and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules; Order 10 Rule 11

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Pamela Waithera Mburu v County Government of Kajiado [2020] KEELC 1753 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1753/eng@2020-07-07

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