Wilbur Earl Hightower JR v Mark Kithinji Mbatiah [2020] KEELC 2407 (KLR)
The bottom line
#The Environment and Land Court in Meru refused to set aside a default judgment because the applicant showed no commitment to attending a fresh trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the substituted service was proper
The substituted service was proper; the allegation that it was not was unfounded as none of the documents showed the applicant left Kenya in 1984 or that the respondent was aware of it
The court examined the annexures relied on by the applicant (letters of 23.1.2020, 4.9.2012 and 10.9.2019 and title documents) and found they did not prove that he left the country in 1984 or that the respondent knew of his absence, so service under Order 5 rule 21 was not required and the substituted service stood.
Whether the exparte judgment should be set aside notwithstanding proper service
The prayer failed because the applicant did not demonstrate readiness and ability to participate in a fresh trial
Though the right to be heard under Article 50(1) is jealously guarded, the applicant, though ill, could communicate and give instructions, yet gave no power of attorney, no solemn affirmation to attend trial, and no guardian was appointed. The court agreed he had not shown an intention to remain present in person or through a legal representative throughout the trial.
Whether joinder of Nathan and Celina Kinoti as interested parties could be granted
Refused; the prayer was raised only in submissions and the proposed parties had not sworn affidavits
The court held that submissions are persuasive arguments and substantive prayers ought not to be introduced at that stage; additionally, Nathan and Celina had not expressed any desire to be enjoined by affidavit.
Legal principles established
#- In an application to set aside exparte judgment the court must consider both the reason for non-attendance/non-filing and whether the applicant has a reasonable defence raising triable issues
- If a judgment is regular the court has discretion to set it aside on just terms; if irregular it must be set aside ex debito justitiae
- Substantive prayers cannot be sought for the first time in submissions
Court orders
#- 1.The notice of motion dated 3.1.2020 is dismissed with costs to the respondent
- 2.Counsel for the applicant (firm of Charles Kimati & Co. Advocates) is allowed to come on record
- 3.Costs of the application are awarded to the respondent
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 42 rule 6 of the Civil Procedure Rules, and Section 68(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilbur Earl Hightower JR v Mark Kithinji Mbatiah [2020] KEELC 2407 (KLR)", Case Analysis (2020). Notice of Motion dated 3rd January 2020 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2407/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.