Hannah Waruguru Mwangi & another v Salome Wanjiru Gitoho & another [2021] KEELC 3235 (KLR)
The bottom line
#A Kenyan court set aside a default judgment in a land dispute, ruling that whoever claims they were never served with court papers must prove it.
What this practically means
#Executive summary
#Key legal issues
#Whether service was effected on the Applicant
Service was duly effected as shown by the Affidavit of Service; the Applicant failed to prove non-service
The Affidavit of Service sworn by John Muturi Njoroge complied with Order 5 Rule 15, detailing the date, mode and identifying party. Although the Applicant disputed residing at the disclosed village and intimated she would cross-examine the process server, she never did. The court held that the challenger of service bears the burden of proof, which was not discharged.
Whether the orders should be set aside
The default judgment of 14/12/2016 was set aside because the Applicant explained her delay and the Respondent would suffer no prejudice
The court found the Applicant's explanation that she learned of the suit in December 2020 credible and uncontroverted, and found no demonstration of prejudice by the Respondent. However, the injunctive orders themselves were not set aside since non-service was not proved, and the court noted the injunction had lapsed under Order 40 Rule 6 for want of extension.
Whether the Defence raises triable issues
The draft defence and counterclaim raises triable issues on ownership of the suit land
The Applicant pleads she is the rightful owner and has occupied the land since 1997, while the Plaintiffs also stake a claim to the same land. The question of rightful ownership must go to full hearing. This finding, coupled with the absence of prejudice, justified granting leave to file defence despite the default judgment.
Legal principles established
#- The party challenging service bears the burden of proving that she was not served
- An interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise
Court orders
#- 1.The orders issued on 14/12/2016 (judgment in default of appearance and defence) set aside
- 2.Leave granted to the Applicant to file and serve the statement of defence and counterclaim within 15 days
- 3.In default of filing within 15 days, the set-aside orders shall lapse
- 4.Costs payable by the Applicant in favour of the Respondents/Plaintiffs
- Jurisdiction invoked
- Inherent discretion under the Civil Procedure Act and Civil Procedure Rules, 2010 (Orders 5, 40)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hannah Waruguru Mwangi & another v Salome Wanjiru Gitoho & another [2021] KEELC 3235 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3235/eng@2021-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.