Moses Ngare v Leonard Kaibunya [2021] KEELC 2657 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed land suit, ruling that a litigant must be served properly and deserves their day in court.
What this practically means
#Executive summary
#Key legal issues
#Setting aside dismissal for non-attendance
The trial court misdirected itself in holding it was functus officio and in finding service effective; its discretion was not exercised judiciously and the dismissal order and the ruling declining to set it aside were set aside
Order 12 Rule 7 confers an unfettered discretion to set aside a dismissal on such terms as are just. The trial court wrongly held it was functus officio and wrongly found that service on one of two firms on record was sufficient. Since the suit was defended and there was no evidence of intent to delay or obstruct justice, denying a hearing was an erroneous exercise of discretion warranting appellate interference.
Service of hearing notice where two law firms are on record
Service on only one of two law firms on record, absent a designated leading firm, is not proper service
The firm of Elijah K. Ogoti & Co Advocates which filed the suit was still on record and had not been served. The excuse that the firm had relocated to Malindi was not plausible since Malindi is within Kenya. Both firms ought to have been served where no leading firm was designated, so the trial court erred in finding proper service.
Whether the supporting affidavit should have been sworn by the party
An advocate may properly swear an affidavit stating that his firm was not served with a hearing notice
The deponent of an affidavit should depose to matters within his own knowledge. It would be illogical to require the party to swear such an affidavit based on information supplied by the advocate. No Kenyan law prevents an advocate from swearing such an affidavit, so the trial court erred on this point as well.
Costs of the appeal
Costs follow the event and the successful appellant is entitled to costs absent good reason to the contrary
Under the proviso to Section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. No good reason existed here to deny the appellant costs of the appeal and the motion.
Legal principles established
#- An appellate court should not interfere with the exercise of judicial discretion by a trial court unless it is shown the discretion was not exercised judiciously or was exercised on wrong principles
- Where there is no designated leading firm, a process server is obliged to serve all law firms on record
- There is no legal bar to an advocate swearing an affidavit stating that his firm on record was not served with a hearing notice
- A court retains discretion under Order 12 Rule 7 to set aside or vary a dismissal order and is not functus officio upon entering such an order
Court orders
#- 1.The appeal be and is hereby allowed
- 2.The ruling and order of the trial court dated 26th July, 2018 be and is hereby set aside
- 3.The Appellant's notice of motion dated 6th October, 2017 is allowed; the dismissal order dated 14th September, 2017 is set aside and the Appellant's suit reinstated for trial and disposal
- 4.The Appellant is awarded costs of the appeal and of the notice of motion dated 6th October, 2017
- 5.The reinstated suit shall be heard before any magistrate competent to try the suit other than Hon. G. Wakihiu
- On appeal from
- Chief Magistrate's Court, Maua
- Maua CMCC No. 141 of 2010
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court under the Civil Procedure Act (Cap. 21) and Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Ngare v Leonard Kaibunya [2021] KEELC 2657 (KLR)", Case Analysis (2021). Maua CMCC No. 141 of 2010 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2657/eng@2021-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.