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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 24/8/2021)· [2021] KEELC 320 (KLR)

Daniel Gatuma Mutua & 10 others v Attorney General & 5 others [2021] KEELC 320 (KLR)

Environment and Land Court
10 December 2021
2,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a default judgment on Thika land, confirming defendants get their day in court—but must pay for the delay.

What this practically means

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Executive summary

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The 3rd Defendant, T. Mishael Makori, moved the Environment and Land Court at Thika by Notice of Motion dated 24th August 2021 seeking to set aside the judgment and decree of 15th July 2021, to summon the process server Duncan Kimani Mugo for examination, and for an order restraining the Plaintiffs from interfering with his occupation of LR Thika Municipality Block 6/1108. He asserted he was never served with summons, never met the process server, and that his defence had remained on file unstruck when interlocutory judgment was entered. The Plaintiffs opposed, arguing the application was incompetent, that there was no proof of service of the appearance and defence, that the judgment was jointly and severally against the 1st, 2nd and 3rd Defendants, and that no appeal had been lodged. The court found that the burden lay on the Applicant to disprove service and that, having elected not to table evidence, he was presumed duly served. It nonetheless found he had failed to serve his defence as required by Order 7 rule 1, and that since his pleadings were never struck out, the request for judgment and the formal proof route were irregular. Applying Philip Chemwolo v Augustine Kubende and Article 50(1) on fair hearing, the court exercised its discretion, set aside the judgment of 15th July 2021 with all consequential orders, directed maintenance of status quo, awarded the Plaintiffs throw away costs of Kshs 30,000/-, and directed the parties to fix the suit for hearing on priority basis.

Key legal issues

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01

Proof of service of summons

Holding

The Applicant was presumed duly served as he failed to table evidence contradicting the process server's affidavit of service

Reasoning

The Applicant averred he was never served and never met the process server, but elected not to file evidence or submissions to prove this. Where a party disputes service, the onus rests on him. Since the Applicant filed elaborate pleadings soon after alleged service, the court presumed service from the documents on record.

p. 2
02

Effect of failure to serve the memorandum of appearance and defence

Holding

The Applicant's pleadings remained on record and were never struck out, so the interlocutory judgment and formal proof route were irregular

Reasoning

Order 7 rule 1 requires a defendant to serve the defence within 14 days of filing. The Applicant did not serve his defence. However, since no application was made to strike out the pleadings, they remained alive; consequently the request for judgment should not have proceeded, though the Applicant contributed to the state of affairs.

p. 3
03

Discretion to set aside default judgment

Holding

The court exercised its discretion in favour of setting aside the judgment so the parties could be heard on merit, guided by Chemwolo v Kubende and Article 50

Reasoning

Applying the broad equity approach that defaults should be put right by payment of costs absent fraud, and the constitutional right to a fair hearing under Article 50(1), the court found this a proper case to exercise discretion and set aside the judgment of 15th July 2021.

p. 3
04

Interim protection of the suit property

Holding

Status quo ordered rather than an injunction, guided by Order 40 rule 1

Reasoning

The court declined to frame the relief as a conventional injunction and instead directed maintenance of status quo pending hearing and determination of the suit, anchored on Order 40 rule 1 of the Civil Procedure Rules.

p. 3

Legal principles established

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  • The party disputing service bears the onus of proving he was not served
  • Unless a judgment has been pronounced on the merits or by consent, the court retains power to set aside an ex parte result obtained through procedural default
  • Courts favour putting right defaults by payment of costs, absent fraud or intent to overreach
  • A defendant who fails to serve his defence within 14 days risks having it struck out under Order 10 rule 3

Court orders

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  1. 1.The Judgment and Decree given on 15th July 2021 together with all consequential orders set aside; suit to proceed to full hearing on merit
  2. 2.Prayer (d) (summons to the process server) marked spent
  3. 3.Status quo to be maintained pending the hearing and determination of the suit
  4. 4.Applicant to pay throw away costs of Kshs 30,000/- to the Plaintiffs within 30 days
  5. 5.Parties directed to fix the matter for hearing on priority basis

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 rule 1
  • Civil Procedure RulesOrder 10 rule 3
  • Civil Procedure RulesOrder 10 rule 6
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 40 rule 1
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (1)

  • PHILIP CHEMWOLO & ANOTHER VS AUGUSTINE KUBENDE
    (1982-88) 1 KAR 1036
Jurisdiction invoked
Inherent discretion to set aside judgment under the Civil Procedure Rules; Article 50(1) of the Constitution on fair hearing

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, "Daniel Gatuma Mutua & 10 others v Attorney General & 5 others [2021] KEELC 320 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 24/8/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/320/eng@2021-12-10

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