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ELCAllowedPetition (Elc Kerugoya) - Notice of Motion dated 6.12.2019· [2021] KEELC 2105 (KLR)

Milka Muthoni Wagoco v County Council of Kirinyaga & 2 others [2021] KEELC 2105 (KLR)

Environment and Land Court
23 July 2021
ECE.C. Cherono
4,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a Kshs.2.5 million judgment against Kirinyaga County because the county was never served with the case papers.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on a Notice of Motion dated 6.12.2019 by the 1st Respondent/Applicant, the County Government of Kirinyaga, successor to the defunct County Council of Kirinyaga. The Applicant sought leave for Wanyonyi & Muhia Advocates to come on record, stay of execution of the judgment delivered on 16.6.2017, setting aside of that judgment, and leave to file its defence out of time. The judgment had declared the Petitioner the rightful owner of parcel KIRINYAGA/GATHIGIRIRI/151, ordered vacant possession, and awarded damages of Kshs.2,500,000/- plus costs. The Applicant contended it was never served with the petition and that Gitonga D.N. & Co. Advocates came on record without instructions. The Petitioner opposed, arguing finality, functus officio, estoppel and laches, citing Telecom Kenya v Ochanda, Rai v Rai and Mbogo v Shah. The court applied Order 10 Rule 11 and the principles in Patel v EA Cargo Handling, Sebei District Administration v Gasyali and Shah v Mbogo. It found no evidence of service on the Applicant, no proof that the earlier firm had instructions, and held the explanation for default reasonable and excusable. The draft defence raising compulsory acquisition and fraud disclosed prima facie triable issues. The Respondent's finality authorities were held irrelevant to a discretionary application to set aside an ex-parte judgment. The application was allowed: the Applicant to file its replying affidavit within 7 days and to pay thrown away costs of Kshs.10,000/- within 30 days.

Key legal issues

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01

Whether the County Government of Kirinyaga was duly served with the petition and whether its failure to respond was excusable

Holding

The Applicant was not served with the petition or any court process; its explanation for failure to enter appearance and file a reply was reasonable and excusable.

Reasoning

The County Attorney deposed that the County Government was never served with the petition, summons or any court documents and only became aware of the matter upon being served with a certificate of order at the execution stage. The Respondent's denial was not supported by any empirical evidence of service. There was also no evidence that the firm of Gitonga D.N. & Co. Advocates was instructed by the defunct County Council, and these uncontroverted averments established excusable default.

p. 7
02

Whether the draft defence raises triable issues warranting setting aside the ex-parte judgment

Holding

The draft replying affidavit raising compulsory acquisition of Kabare/Kiritine/637 in exchange for Kirinyaga/Gathigiriri/151 and allegations of fraud raised prima facie triable issues requiring trial.

Reasoning

The proposed defence contended that the Petitioner's claim to the suit land was based on fraud, deceit and misrepresentation because the land had been compulsorily acquired by the County Government pursuant to an exchange agreement with the defunct County Council. Land claims are emotive and the averments disclosed a prima facie defence that should go to trial for adjudication rather than be shut out by the ex-parte judgment.

p. 7
03

Whether the court, having delivered judgment on 16.6.2017, was functus officio and precluded from setting it aside

Holding

The functus officio and finality arguments were rejected; the authorities cited by the Respondent went to the merits whereas the application sought discretionary relief to set aside an ex-parte judgment under Order 10 Rule 11.

Reasoning

The Respondent relied on Telecom Kenya Ltd v John Ochanda and Rai v Rai on finality of litigation, and Mbogo v Shah on deliberate obstruction. The court held those authorities irrelevant because the application concerned the exercise of the discretion to set aside an ex-parte judgment where the party was never served, not a review of the merits of a concluded inter-partes decision.

p. 7

Legal principles established

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  • Where judgment is regular the court will not usually set it aside unless satisfied there is a defence on the merits, meaning a triable issue, not a defence that must succeed
  • The discretion to set aside an ex-parte judgment is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist one who deliberately obstructed or delayed the course of justice
  • To deny a party a hearing should be the last resort of a court

Court orders

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  1. 1.The Applicant to file their replying affidavit to this Petition within 7 days from today
  2. 2.The Applicant to pay the Respondent thrown away costs of this application assessed at Kshs.10,000/= within 30 days from today

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Limitation of Actions ActSection 7
  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Section 33 of the Sixth Schedule

Cases cited (13)

  • Telcom Kenya Limited -vs- John Ochanda (Suing on his behalf and on behalf of 996 Former Employees of Telcom Kenya Limited)
    (2014) e KLR
  • Rai -vs- Rai
    Court of Appeal Civil Application No. 307 of 2003
  • Mbogo and Another -vs- Shah
    (1968) EA 93
  • Pithon Maina -vs- Mugiria
    (1982 to 1988) I KAR 171
  • Lindsay Petroleum Co. -vs- Hurd
    (1874) L.R. 5 P.C. 221
  • Benjoh Amalgamated Limited and Another -vs- Kenya Commercial Bank
    (2014) e KLR
  • Patel -vs- E.A Cargo Handling Services Ltd.
    (1974) EA 75
  • Sebei District Administration -vs- Gasyali
    (1968) E.A 300
  • Jamnadas -vs- Sodha -vs- Gordandas Hemraj
    (1951) 7 ULR II
  • Shah -vs- Mbogo & Another
    (1967) EA 116
  • Peter Mbwe Kibiriti -vs- The B.O.M, Kabare Girls Secondary School and 6 Others
    Kerugoya ELC Suit No. 36 of 2019
  • Republic -vs- The County Secretary, Kirinyaga County & Others
    Kerugoya ELC Judicial Review No. 4 of 2019
  • Milka Muthoni Wagoco -vs- Peter Mbwe Kibiriti & Kirinyaga County Council
    Embu HCC No. 29 of 2007
Jurisdiction invoked
Order 9 Rule 9, Order 10 Rule 11, Order 51 Rule 1 Civil Procedure Rules; Section 1A, 1B & 3A Civil Procedure Act; inherent jurisdiction (ex-debito justitiae)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Milka Muthoni Wagoco v County Council of Kirinyaga & 2 others [2021] KEELC 2105 (KLR)", Case Analysis (2021). Petition (Elc Kerugoya) - Notice of Motion dated 6.12.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2105/eng@2021-07-23

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