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ELCPartially AllowedELC Case No. 24 of 2017 (consolidated with ELC Miscellaneous Application No. E030 of 2020)· [2021] KEELC 1042 (KLR)

Hassan Mohammed Haji v Mohammed Keynan Hassan & 6 others [2021] KEELC 1042 (KLR)

Environment and Land Court
5 November 2021
3,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that newspaper notice counts as legal service, upheld a landowner's title, and allowed eviction of occupants who never appealed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) determined two consolidated applications arising from a long-running land dispute dating to 2012. Hassan Mohammed Haji, the registered proprietor of a parcel in Garissa, had obtained a judgment on 25th March 2019 against Mohammed Keynan Hassan and others, ordering them to vacate within six months and paying nominal trespass damages of Kshs. 100,000. The defendants had been served by substituted newspaper advertisement after their advocate, J.O. Otieno, was found not to hold a practising certificate. First, the plaintiff applied for eviction orders and police security under Section 152E of the Land Act, having published eviction notices. Second, Abdi Bille Maalim, chairperson of Maramtu II Farm (a self-help group whose members were among the defendants), sought to set aside the judgment and decree, to have the suit heard de novo, and to have the farm added as a defendant, contending the farm was never served and members faced eviction unheard. The court framed four issues and held that service by advertisement, ordered and effected as directed, was proper and that a strong presumption of service arises irrespective of recipients' literacy, following Anjeli Limited v Kenga Simba. The judgment was therefore regular, and the defence on record did not challenge the plaintiff's certificate of title, which is prima facie evidence of indefeasible ownership under Section 26 of the Land Registration Act. The application to set aside was dismissed with costs, while the eviction application was allowed with costs.

Key legal issues

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01

Whether the ex-parte judgment of 25th March 2019 should be set aside

Holding

The judgment was regular because the defendants were properly served through substituted service ordered by the court; the application to set aside fails.

Reasoning

The court had granted leave for substituted service by newspaper advertisement after learning the defendants' advocate lacked a practising certificate. Service was properly effected per the court's directions. Regularly entered judgments may only be set aside at the court's discretion upon sufficient cause, such as a triable issue. The defence on record does not challenge the plaintiff's certificate of title, so no useful purpose would be served by setting aside the judgment.

p. 5
02

Whether illiteracy or lack of access to newspapers negatives substituted service

Holding

No; the presumption of service by advertisement is not displaced by the recipient's literacy level.

Reasoning

Relying on Anjeli Limited v Kenga Simba, the court held that once the court orders service through advertisement and the party complies, the defendant must be deemed served, and the law does not question the recipient's literacy. The defendants could not now cry foul that they were illiterate after the court was satisfied service was effected.

p. 5
03

Whether eviction orders should issue against the occupants

Holding

Yes; the plaintiff having complied with Section 152E of the Land Act and the judgment having not been set aside, the eviction application succeeds.

Reasoning

The plaintiff obtained a regular judgment ordering the defendants to vacate within six months, issued the statutory eviction notice under Section 152E of the Land Act published in the Daily Nation and Standard newspapers, and displayed copies on the suit property. The defendants neither objected to nor appealed the judgment, so eviction orders with police security were warranted.

p. 1

Legal principles established

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  • Once a court orders substituted service by advertisement and a party complies, the defendant is deemed served and literacy of the recipient is irrelevant
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud, misrepresentation, illegality or corruption

Court orders

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  1. 1.The Notice of Motion by the defendants dated 26th November 2020 is dismissed with costs
  2. 2.The Notice of Motion by the plaintiff dated 3rd November 2020 is allowed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 9 Rules 1(a) and 2(a)
  • Civil Procedure Rules 2010Order 10 Rule 11
  • Civil Procedure Rules 2010Order 12 Rule 7
  • Land Act 2012Sections 152, 152E
  • Land Registration Act No. 3 of 2012Section 26(1)

Cases cited (11)

  • Pamela Jebichii Koskei Vs Horizon Coach Co. Ltd & 2 others
    [2018] eKLR
  • William Macharia Maina & Another Vs Francis Barchuo & 3 Others Kibiwott Yator Kuryases & 8 others (Interested parties)
    eKLR
  • James Kanyita Nderitu Vs Maries Philotas Ghika & Another
    [2016] eKLR, C.A No. 6 of 2015
  • Mbogo & Another V Shah
    (supra)
  • Patel V EA Cargo Handling Services Ltd
    [1975] EA 75
  • Chemwolo & Another V Kubende
    [1986] KLR 492
  • CMC Holdings Vs Nzioki
    [2004] 1 KLR 173
  • Onyango Oloo Vs Attorney General
    [1986 – 1989] EA 456
  • Sangram Singh Vs Election Tribunal, Kotch
    AIR 1955 SC 664
  • Anjeli Limited Vs Kenga Simba & 12 others; Chengo Omar & 19 others (Intended interested parties)
    (2021) eKLR
  • Patel Vs East Africa Cargo Handling Services Ltd
    (1973) E.A. 75
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Constitution and the Environment and Land Court Act, exercising discretion under Order 12 Rule 7 of the Civil Procedure Rules

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, "Hassan Mohammed Haji v Mohammed Keynan Hassan & 6 others [2021] KEELC 1042 (KLR)", Case Analysis (2021). ELC Case No. 24 of 2017 (consolidated with ELC Miscellaneous Application No. E030 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1042/eng@2021-11-05

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