Eunice Kahindi Gutu v Mohamed Ajaz Mirza [2020] KEELC 2044 (KLR)
The bottom line
#A Kenyan court threw out a land judgment won through newspaper notice, ruling the defendant could easily have been traced and served directly.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment should be set aside
The judgment was set aside because substituted service was obtained in bad faith - the Respondent could easily have been traced through the parallel suit filed by the Applicant's husband, in which he had already entered appearance
Order 10 Rule 11 confers a wide discretionary power to set aside ex-parte judgments on just terms. The court found the Applicant's claim that she was unaware of her husband's similar adverse possession suit against the same Respondent lacked candour. Since the Respondent had been served in that earlier suit, diligent effort would have located him, so the newspaper advertisement was actuated by bad faith and justice required setting aside the judgment.
Whether the Respondent had knowledge of the proceedings
The court accepted that the Respondent was unaware of the proceedings until he discovered the judgment on a Google search on 1st May 2019, there being no evidence he read the newspaper advertisement
The record showed nothing demonstrating that the Respondent read or otherwise learned of the substituted service advertisement. Having entered appearance in the husband's earlier suit over the same property, he would likewise have defended this suit had he known of it, supporting the inference that his non-appearance was not deliberate evasion.
Legal principles established
#- The power to set aside a judgment entered under Order 10 is discretionary and to be exercised on such terms as are just
- The discretion to set aside an ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction
Court orders
#- 1.Judgment delivered on 18th January 2019 set aside
- 2.Respondent granted 21 days to file a response to the Applicant's Originating Summons dated 24th October 2017
- 3.Parties directed to take steps within 45 days to have the matter mentioned together with Malindi ELC Case No. 95 of 2015 (O.S); Kahindi Kaku Birya v Mohamed Ajaz Mirza for purposes of consolidation
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Kahindi Gutu v Mohamed Ajaz Mirza [2020] KEELC 2044 (KLR)", Case Analysis (2020). Notice of Motion dated 8th May 2019 in Originating Summons dated 24th October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2044/eng@2020-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.