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ELCAllowedNot stated in the judgment· [2020] KEELC 3754 (KLR)

Letoire Ole Ntirori v Daniel Mwaria Kinyingi & 3 others; Robert Kombo Nyakango & another (Interested Party) [2020] KEELC 3754 (KLR)

Environment and Land Court
3 February 2020
2,402 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a defective default judgment in a Kajiado land dispute and allowed affected landowners to join the case.

What this practically means

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Executive summary

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The court determined two applications: the Defendants' Notice of Motion dated 25th May 2018 seeking to set aside the default judgment entered against them and leave to file a Statement of Defence, and the Applicants' application dated 17th January 2019 seeking to be enjoined as interested parties and to set aside the default judgment. Default judgment had been entered on 8th June 2016. The Plaintiff opposed both applications, contending that the intended interested parties were strangers to the suit, that the parcels they claimed were not the subject matter of the dispute (Kajiado/Kitengela/2603), and that service on the Defendants was duly effected, as confirmed by the process server's affidavit. On joinder, the court applied Order 1 Rule 10(2) of the Civil Procedure Rules and the Trusted Society of Human Rights Alliance v Mumo Matemu definition of an interested party, and found from the Land Registrar's report in Kajiado Judicial Review No. 20 of 2016 that the Applicants' parcels emanated from the suit land; it allowed their joinder under Article 50(1) of the Constitution. On setting aside, the court found that the claim was not liquidated yet interlocutory judgment was entered contrary to Order 10 rules 6, 9 and 10, making the judgment irregular and liable to be set aside as of right. The court also found the draft defence raised triable issues. Both applications were allowed, the default judgment was set aside, the Defendants were granted 14 days to file and serve their defences, and costs were awarded in the cause.

Key legal issues

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01

Joinder of interested parties

Holding

The Applicants were properly enjoined as interested parties because the suit land was subdivided into their parcels and they will be affected by the outcome.

Reasoning

The court adopted Order 1 Rule 10(2) of the Civil Procedure Rules and the definition of an interested party in Trusted Society of Human Rights Alliance v Mumo Matemu, holding that the fulcrum of the suit is ownership of the suit land, which the Land Registrar's report shows emanated into the Applicants' parcels. The court rejected the Plaintiff's objection that the Applicants were strangers, relying on Article 50(1) of the Constitution on fair hearing.

p. 2
02

Setting aside of default judgment

Holding

The default judgment was irregular as it was entered prematurely contrary to Order 10 rules 6, 9 and 10, and was set aside; the Defendants were granted leave to file their Defence.

Reasoning

The court found the claim was not liquidated yet interlocutory judgment was entered contrary to Order 10 rules 6, 9 and 10. Relying on Altana Corporation and James Kanyiita Nderitu, an irregular default judgment is set aside ex debito justitiae as a matter of right, without considering triable issues or delay, since the defendants were condemned unheard. The draft defence was also found to raise triable issues.

p. 3

Legal principles established

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  • A party whose presence before the court is necessary to enable the court effectually and completely adjudicate upon all questions in the suit may be added as a party, and an interested party is one with a recognizable stake who will be affected by the decision.
  • An irregular default judgment must be set aside as of right, without regard to triable issues or delay.

Court orders

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  1. 1.The Interested Parties are enjoined in the suit as interested parties.
  2. 2.The default judgment entered on 8th June 2016 against the Defendants is set aside.
  3. 3.The Defendants are granted leave of 14 days to file and serve their respective Defences.
  4. 4.Costs in the cause.

Authorities

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Legislation

  • Environment and Land Court Actsections 3, 4(2), 13, 18 & 19
  • Civil Procedure Actsections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 10 Rules 6, 9, 10 & 11; Order 40 Rules 2(1) & (3); Order 50 Rules 1 & 2; Order 51; Order 1 Rule 10(2)
  • Constitution of KenyaArticle 50(1)

Cases cited (9)

  • Doune Farms Limited V Richard Soi & 4 Others
    (2017) eKLR
  • Marigat Group Ranch & 3 others V Wesley Chepkoimet & 19 Others
    (2014) eKLR
  • Trusted Society of Human Rights Alliance V Mumo Matemu & 5 Others
    Petition NO. 12 of 2013; (2015) eKLR
  • Weld – Con Limited V China National Aero Technology International Engineering Corporation & Another
    Civil Suit No. 5 of 2017
  • Evans V Bartlam
    (1937) AC 473
  • Altana Corporation Limited v Clarence Matheny Leadership Training Institute; National Land Commission & another (Interested Party)
    [2019] eKLR
  • James Kanyiita Nderitu & another v Marios Philotas Lilikas & another
    [2016]
  • Sangram Singh v Election Tribunal Koteh
    1955 AIR 425
  • Patel V EA Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Sections 3, 4(2), 13, 18 & 19 of the Environment and Land Court Act; sections 3, 3A and 63(e) of the Civil Procedure Act; Article 50(1) of the Constitution

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, "Letoire Ole Ntirori v Daniel Mwaria Kinyingi & 3 others; Robert Kombo Nyakango & another (Interested Party) [2020] KEELC 3754 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3754/eng@2020-02-03

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