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ELCOther· [2021] KEELC 857 (KLR)

George Nzaro Wilmot Tumbo v Saumu Mandano Ndurya & 2 others [2021] KEELC 857 (KLR)

Environment and Land Court of Kenya
10 November 2021
LNL.L. Naikuni
3,949 words in judgment
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The bottom line

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A Mombasa court ruled you cannot get default judgment against the Kenyan Government without first asking the court's permission.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Mombasa (Naikuni J) in a long-running land dispute over Plot No. 70 Mazeras Adjudication Section (title MGUMOPASTA/MAZERAS/709) brought by the Plaintiff as administrator of the estate of the deceased first registered proprietor. During directions for the part-heard defence hearing, the 3rd Defendant (Rhino Properties Limited), claiming to be a bona fide purchaser for value who bought the land from the 1st Defendant, raised an objection seeking: directions on its Notice of Claim against Co-Defendants under Order 1 Rule 24; leave to serve a Third Party Notice on the Hon. Attorney General for indemnity or contribution (alternatively a refund of Kshs. 29,840,000); and default judgment against the Attorney General for failing to enter appearance or pleadings, having only filed grounds of opposition. The Plaintiff, the Attorney General and the 1st Defendant opposed the objection, urging that the 12-year-old matter should proceed to trial. The court held that suits against the Government are governed by the Government Proceedings Act, Cap. 40, and must be instituted by or against the Attorney General under Article 156 of the Constitution, and that under Order 10 Rule 8 no default judgment may be entered against the Government without prior leave of court, which was neither sought nor justified. The court corrected the erroneous belief that it had earlier allowed the Chamber Summons, then allowed it but directed the Attorney General's joinder as 4th Defendant rather than as Third Party, granted timelines for amended pleadings and compliance with Order 11, set the matter for pre-trial conference and hearing, and directed the Land Registrar to register an inhibition over the suit property, with status quo maintained, pending final determination.

Key legal issues

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01

Statutory framework for suing the Government and the role of the Attorney General

Holding

The Government Proceedings Act Cap. 40 governs civil proceedings against the Government, which must be instituted by or against the Attorney General, who is the principal legal advisor to the Government under Article 156 of the Constitution and is statutorily protected from personal liability

Reasoning

The court traced the framework from the Government Proceedings Act, Cap. 40, Sections 12 and 13A, to Article 156 of the Constitution establishing the office of the Attorney General as principal legal advisor and representative of the national government in court. It noted the Office of the Attorney General Act shields the office-holder from personal liability for good-faith acts. The court observed the 30-day statutory notice requirement is often overlooked in urgent filings, an issue it deferred for another day.

p. 3
02

Whether default judgment can be entered against the Government

Holding

No - default judgment against the Government requires prior leave of the court under Order 10 Rule 8, and none was sought or granted

Reasoning

Order 10 Rule 8 of the Civil Procedure Rules, 2010 bars entry of default judgment against the Government without leave of court, on an application served at least seven days before the return day. The court found the 3rd Defendant never sought such leave, and that the power is discretionary and must be moved with sufficient reasons. The implied suggestion of default judgment against the Attorney General was therefore untenable and collapsed on arrival.

p. 4
03

Joinder of the Attorney General as 4th Defendant rather than Third Party

Holding

The court allowed the Chamber Summons but directed the Attorney General be joined as 4th Defendant under Orders 6 and 7, not as Third Party under Order 1 Rules 14 and 15

Reasoning

The court corrected an erroneous assumption that it had earlier allowed the Chamber Summons; the proceedings of 24th February 2021 only granted a last adjournment with liberty to pursue the third party proceedings. Exercising its overriding-objective powers, the court was satisfied the Attorney General would possess relevant information concerning the Department of Lands, and directed joinder as 4th Defendant with 15 days to enter appearance and file defence and counterclaim.

p. 4

Legal principles established

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  • Civil proceedings by or against the Government must be instituted by or against the Attorney General
  • No proceedings against the Government may be instituted until 30 days after service of a written notice of intention to sue
  • Default judgment cannot be entered against the Government without leave of the court

Court orders

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  1. 1.The Chamber Summons application dated 22nd February 2021 allowed, with the Hon. Attorney General joined in the suit as the 4th Defendant under Orders 6 and 7 of the Civil Procedure Rules, and not as Third Party under Order 1 Rules 14 & 15
  2. 2.The Hon. Attorney General granted 15 days to formally enter appearance and file a Defence and Counter Claim under Order 6 Rule 1 and Order 7(1) of the CPR, along with the grounds of opposition dated 25th October 2021, and to comply with Order 11 on case management
  3. 3.The Plaintiff and the 1st, 2nd and 3rd Defendants granted 14 days liberty to file and serve a Further Amended Plaint and Defence to include the Hon. Attorney General as 4th Defendant, and Replies to the Defence and/or Counter Claim
  4. 4.Matter to be mentioned on 15th December 2021 for confirming compliance, conducting a pre-trial conference under Order 11, and taking two consecutive hearing dates within 60 days
  5. 5.Plaintiff at liberty to recall any witnesses already testified under Order 18 Rule 10 of the Civil Procedure Rules on matters arising from the pleadings filed by the Attorney General as 4th Defendant
  6. 6.Land Registrar, Kilifi County directed to register an inhibition order against Plot No. 70 Mazeras Adjudication Section / MGUMOPASTA/MAZERAS/709 under Sections 68(1)(2)(3) and 69 of the Land Registration Act pending hearing and final determination
  7. 7.Status quo to the suit property to be maintained until the case is heard and finally determined

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 1 Rules 14, 15 & 24; Order 6 Rule 1; Order 7 Rule 1; Order 10 Rules 4, 6, 10 & 8; Order 11; Order 18 Rule 10
  • Government Proceedings ActSections 12 & 13A
  • Constitution of KenyaArticles 156(4)(a)-(c), 156(6), 159(1) & (2)
  • Office of the Attorney General ActSection 8
  • Environment and Land Court ActSections 3, 18, 19, 20, 24 & 30
  • Registration of Land Act (repealed)Cap. 300
  • Land Registration ActSections 68(1)(2)(3) & 69
Jurisdiction invoked
Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment and Land Court Act, 2012

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, "George Nzaro Wilmot Tumbo v Saumu Mandano Ndurya & 2 others [2021] KEELC 857 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/857/eng@2021-11-10

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