Hassan Mohammed Haji v Mohammed Keynan Hassan & 6 others [2021] KEELC 1042 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ex-parte judgment of 25th March 2019 should be set aside
The judgment was regular because the defendants were properly served through substituted service ordered by the court; the application to set aside fails.
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.
Whether illiteracy or lack of access to newspapers negatives substituted service
No; the presumption of service by advertisement is not displaced by the recipient's literacy level.
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.
Whether eviction orders should issue against the occupants
Yes; the plaintiff having complied with Section 152E of the Land Act and the judgment having not been set aside, the eviction application succeeds.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion by the defendants dated 26th November 2020 is dismissed with costs
- 2.The Notice of Motion by the plaintiff dated 3rd November 2020 is allowed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.