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ELCPartially AllowedNot stated in excerpt (related suit: Busia CMCC ELC No. 88 of 2019)· [2021] KEELC 2845 (KLR)

John Ndeda v David Mukangula Saizi [2021] KEELC 2845 (KLR)

Environment and Land Court
15 June 2021
AOA. Omollo
859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Busia set aside an ex-parte land judgment and arrest warrant because the defendant showed a genuine boundary-dispute defence, despite delay.

What this practically means

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Executive summary

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The Defendant/Applicant moved the court by a notice of motion dated 11/12/2019 under Order 22 rule 22, Order 40 rule 7 and Order 10 of the Civil Procedure Rules seeking stay of an arrest warrant and order of committal to civil jail, an injunction restraining interference with L.R. Bukhayo/Bugeng'i/2084, and setting aside of the ex-parte judgment and consequential orders. He blamed his former advocates, the firm of Wanyama & Co. Advocates, for failing to file a defence after instructions, and annexed a draft defence denying encroachment. The Plaintiff/Respondent opposed, deposing that the Applicant was duly served, knew of the decree (having listed it among documents in a related suit, Busia CMCC 88 of 2019/2018), and that the application was brought after an unexplained delay of over a year. Applying the principles in Shah v Mbogo, the court found the delay unexplained, since the Applicant did not account for steps taken after learning of the decree. However, the dispute being essentially a boundary/encroachment question between neighbouring parcels Bukhayo/Bugengi/2084 and 12077, the court held the draft defence disclosed a good defence warranting a determination on merits. The court granted prayer 5, setting aside the judgment and all consequential orders, which automatically discharged the arrest warrant and committal. Parties were directed to maintain the status quo, the Defendant to file his defence within 14 days, and the Respondent compensated with thrown away costs of Kshs.15,000 for the delay.

Key legal issues

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01

Whether undue delay defeats an application to set aside ex-parte judgment

Holding

Although the delay was unexplained, the court retained discretion to set aside the judgment upon proof of a good defence, since merits-based determination serves the interests of both parties.

Reasoning

The court applied the Shah v Mbogo principles requiring promptness and that discretion not be used to assist evasion of justice. The Applicant could not explain steps taken after learning of the decree in August 2018. Nevertheless, the claim being a boundary dispute/encroachment requiring factual determination, the court found a good defence existed and exercised its discretion to set aside the judgment, compensating the Respondent with thrown away costs for the delay.

p. 2

Legal principles established

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  • An ex-parte judgment may be set aside where the application is brought without undue delay and the discretion is exercised to avoid hardship resulting from mistake, not to assist one evading justice; yet even where delay is unexplained, the court may still set aside judgment if a good defence is shown so the dispute is determined on merits.

Court orders

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  1. 1.Prayer 5 granted: judgment entered herein and all consequential orders set aside
  2. 2.The arrest warrant/committal to civil jail automatically set aside
  3. 3.Defendant directed to file and serve his defence within 14 days
  4. 4.Parties directed to maintain the prevailing status quo pending hearing and determination of the suit
  5. 5.Plaintiff/Respondent to retain Kshs.15,000 as thrown away costs if taxed costs already paid and refund the difference; if no payment made, Defendant to pay Respondent Kshs.15,000 within 30 days, in default execution to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 40 rule 7
  • Civil Procedure RulesOrder 10

Cases cited (1)

  • Shah Vs Mbogo
    [1967] EA 116
Jurisdiction invoked
Order 22 rule 22; Order 40 rule 7 and Order 10 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, "John Ndeda v David Mukangula Saizi [2021] KEELC 2845 (KLR)", Case Analysis (2021). Not stated in excerpt (related suit: Busia CMCC ELC No. 88 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2845/eng@2021-06-15

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