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ELCDismissedNotice of Motion Application dated 20th August 2020 (arising from an Originating Summons dated 4th March 2019)· [2021] KEELC 1783 (KLR)

Magdalene Wambui MbuguaMuhia & 2 others v Charles King Kigwe & 3 others [2021] KEELC 1783 (KLR)

Environment and Land Court
30 September 2021
LGL. Gacheru
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika refused to set aside an ex parte land judgment because the applicants delayed eight months and filed no draft defence.

What this practically means

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Executive summary

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The 2nd and 3rd Respondents/Applicants, claiming to be purchasers for value of the suit parcels LR 10823/2267 and LR 145845/1 from the 1st Respondent, moved the Court by Notice of Motion dated 20th August 2020 under Article 159 of the Constitution, Sections 1A, 1B and 63(e) of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules. They sought setting aside of the ex parte judgment delivered on 29th November 2019, unconditional leave to defend the suit, an order that the 4th Respondent revert ownership of the suit parcels to the original owner, and costs in the cause. They asserted they were never served with pleadings and only learned of the suit through a letter from the Ministry of Lands dated 23rd February 2020, and that they had an arguable defence. The application was opposed by the applicants in the Originating Summons, who pointed to no draft defence, unexplained delay and laches, and by affidavits of the process server Mathew Musotsi, who deponed that service was effected on the law firm of Andrew Loketo Kariu Advocates and by registered post. The Court framed three issues: whether the ex parte judgment should be set aside, whether leave to defend should issue, and whether the land should revert to the original owner. Applying Patel v E.A Cargo Handling Services Ltd and Shah v Mbogo, the Court found service proper, the judgment regular, and the delay of over eight months unexplained; no draft Defence was annexed, so no triable issues arose. The Court declined to order reversion of the land. The application was dismissed entirely with costs to the Applicants/Respondents.

Key legal issues

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01

Whether the ex parte judgment should be set aside

Holding

Service on the applicants was proper and the unexplained delay of over eight months constituted sufficient reason not to exercise the discretion in their favour

Reasoning

The Court found the process server's return of service credible: a hearing notice was served on the applicants' advocates' firm on 15th April 2019 and a hearing notice of 25th June 2019 was served by registered post. The applicants produced no evidence denying service. The judgment was delivered on 29th November 2019 and the application was dated 20th August 2020, an unexplained delay of more than eight months.

p. 3
02

Whether the applicants deserve unconditional leave to defend

Holding

Leave to defend refused because no draft Defence was annexed and no triable issues were demonstrated

Reasoning

Having found the judgment regular, the Court was required to consider whether a draft Defence raised triable issues. The applicants annexed none, so the Court could not identify any issue in dispute and declined to grant leave to defend.

p. 3
03

Whether the suit parcels should revert to the original owner

Holding

Refused; the Court would not set aside a regular judgment or determine ownership on such an application

Reasoning

The prayer sought an order that the 4th Respondent revert ownership of the suit parcels pending hearing. Since the Court declined to set aside the regular ex parte judgment, it also declined to ventilate ownership issues on this application.

p. 3

Legal principles established

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  • The discretion to set aside an ex parte judgment is wide but must be exercised judiciously, considering whether there is sufficient cause and whether injustice will result
  • A party seeking leave to defend must demonstrate triable issues, ordinarily by annexing a draft Defence

Court orders

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  1. 1.The Notice of Motion Application dated 20th August 2020 is dismissed entirely with costs to the Applicants/Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 63(e)
  • Civil Procedure RulesOrder 12 Rule 7; Order 50 Rule 1; Order 51 Rule 15

Cases cited (2)

  • Patel vs E.A Cargo Handling Services Ltd
    (1974) EA 75
  • Shah vs Mbogo
    (1967) E.A. 166
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 63(e) of the Civil Procedure Act; Order 50 Rule 1 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, "Magdalene Wambui MbuguaMuhia & 2 others v Charles King Kigwe & 3 others [2021] KEELC 1783 (KLR)", Case Analysis (2021). Notice of Motion Application dated 20th August 2020 (arising from an Originating Summons dated 4th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1783/eng@2021-09-30

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