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ELCDismissedBungoma PMCC (suit filed 7th June 2006 - number not stated in judgment)· [2020] KEELC 3488 (KLR)

Florence Nasimiyu Wekesa v Ambrose Mulongo Kasawa; Moses Nambafu Wekesa (Applicant) [2020] KEELC 3488 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Bungoma)
20 February 2020
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Bungoma refused to set aside a default judgment because the defendant waited a year without explanation, and his property had already been sold.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao J at Bungoma, delivered on 20th February 2020, disposes of a Notice of Motion dated 6th July 2011 in which the defendant, Ambrose Mulongo Kasawa, sought to set aside an ex-parte judgment of 8th July 2010 entered against him in a land suit in which the original plaintiff, Florence Nasimiyu Wekesa (since deceased and substituted by her son Moses Nambafu Wekesa), alleged that parcel BOKOLI/MUKUYUNI/429 was held in trust for her and fraudulently registered in the defendant's name. The defendant claimed he was never served with summons, that the process server's affidavit of service was fabricated, and that he had a solid defence. He also sought restraint of Eshikhoni Auctioneers, stay of execution and release of attached property. The plaintiff opposed, contending service was proper, the application was defective, delayed and overtaken by events. The court, applying Pithon Waweru Maina v Thuku Mugira and other East African authorities, found service proper, but noted the application was filed one year after judgment with no explanation for the delay. The attached properties, including livestock, had been sold on 5th July 2011 and part of the proceeds remitted to the plaintiff, making prayers 2, 3 and 5 futile. Considering the prejudice to the plaintiff from the lapse of time, the court declined to set aside the judgment and dismissed the motion with no orders as to costs.

Key legal issues

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01

Whether service of summons was proper

Holding

Service was proper; Muchemi J had been satisfied on the process server's affidavit and the court saw no reason to find otherwise

Reasoning

The process server Kisembe Kiliswa deponed to serving the defendant at Bwani Area of Trans-Nzoia at 10:45 am on 3rd July 2006 after being pointed out by the plaintiff. The defendant merely denied service without showing he was not at that place at that time. The judge who tried the suit, Muchemi J, had found service proper, and this court saw no basis to depart from that finding.

p. 2
02

Whether the ex-parte judgment should be set aside despite inordinate delay and overtaken events

Holding

Application dismissed; the one-year unexplained delay, the sale of the attached properties, and the prejudice to the plaintiff made it improper to set aside the seven-year-old judgment

Reasoning

The application was filed one year after judgment with no explanation for the delay; the defendant did not state when he learnt of the judgment. Attached properties had been sold on 5th July 2011 and part of proceeds remitted to the plaintiff. Granting the orders would prejudice the plaintiff and amount to acting in vain.

p. 2

Legal principles established

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  • Where there was no proper service, an ex-parte judgment will be set aside as a matter of course (ex debito justitiae); where service was proper, the court may still set aside a regular judgment if satisfied there is a defence on the merits raising triable issues
  • The discretion to set aside a default judgment must be exercised judiciously, considering all facts prior to and subsequent to the judgment, and courts should not act in vain

Court orders

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  1. 1.The Notice of Motion dated 6th July 2011 is dismissed with no orders as to costs

Authorities

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Cases cited (4)

  • PITHON WAWERU MAINA .V. THUKU MUGIRA
    1983 eKLR
  • SHAH .V. MBOGO
    1967 E.A 116
  • SHABIR DIN .V. RAM PARKASH ANAND
    (1955) 22 E.A.CIA 48
  • KANJI NARAM .V. VELJI RAMJI
    1954 21 EACA 20
Jurisdiction invoked
Original civil suit; inherent jurisdiction of the court to set aside ex-parte judgments (civil procedure discretion)

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, "Florence Nasimiyu Wekesa v Ambrose Mulongo Kasawa; Moses Nambafu Wekesa (Applicant) [2020] KEELC 3488 (KLR)", Case Analysis (2020). Bungoma PMCC (suit filed 7th June 2006 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3488/eng@2020-02-20

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