Andrew Gachini Gitonga v Stephen Ndirangu Muriithi [2021] KEELC 3599 (KLR)
The bottom line
#The Environment and Land Court in Nyeri set aside a judgment that evicted a man from his land because he was never properly served with court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment should be set aside for want of proper service
The ex-parte judgment was set aside because there was no proper service of summons on the Defendant and his proposed defence of trust raised a triable issue.
The process server left the summons with Grace Wanjiku Ndirangu, described as the Defendant's wife, without making inquiries into the Defendant's whereabouts and without evidence that she resided with him; the affidavits indicated the Defendant resided in Nairobi. The Defendant also denied filing the appearance and defence, alleging forged signatures. The court held the defence of trust raised a triable issue and that a litigant who was never heard should be allowed to defend the suit on the merits.
Whether delay in bringing the application was fatal
Delay was not unreasonable since the Defendant had first moved to set aside the judgment by a notice of motion dated 15th January, 2020, shortly after learning of the suit.
Although the ex-parte judgment was delivered in May 2018 and the Defendant evicted in December 2019, the record showed an earlier application dated 15th January, 2020 for setting aside. The Defendant only withdrew it after a change of advocates was allowed. Since the Defendant's position all along was ignorance of the suit until eviction, his challenge to the judgment was timely.
Whether the Defendant should be reinstated into the suit property
The Defendant was granted reinstatement since his eviction flowed from the now set-aside ex-parte decree.
The Defendant was evicted pursuant to the ex-parte judgment and decree of 30th May, 2018. Once that decree was set aside, there was no legal basis for keeping him out of the property. The court granted reinstatement so as to restore the parties to their respective positions as at the time of filing suit.
Whether the suit property should be preserved
An order of inhibition was granted under Section 68 of the Land Registration Act, 2012; the interim injunction prayer was not granted.
The Defendant alleged the Plaintiff had identified potential buyers and there was a real risk of alienation. The Plaintiff did not specifically respond to or deny this risk. Citing Shivabhai Patel v Manibhai Patel and Section 68 of the Land Registration Act, the court held inhibition sufficient to preserve the property pending the hearing and determination of the main suit.
Who should bear costs of the application
Costs were made in the cause because the parties are close relatives and the main suit has yet to be heard.
While costs generally follow the event under the proviso to Section 27 of the Civil Procedure Act, the court departed from the general rule. Given that the parties are close relatives and the main suit remains unheard, the court directed that costs of the application be in the cause.
Legal principles established
#- Where there was no proper service of summons and the proposed defence raises triable issues, a litigant is entitled to have an ex-parte judgment set aside; denying a litigant a hearing should be the last resort.
- Service on a family member is only valid where reasonable attempts were made to trace the defendant and the person served resided with him.
- Upon setting aside an ex-parte decree, there is no legal basis for keeping the evicted party out of possession, and parties should be restored to their positions as at the time of filing suit.
Court orders
#- 1.The ex-parte judgment dated 30th May, 2018 be and is hereby set aside together with all consequential orders.
- 2.The Defendant shall be reinstated into the suit property within 7 days from the date hereof and in that regard the Plaintiff shall allow him to resume occupation, user, and possession of the suit property which he occupied before his eviction.
- 3.An order of inhibition be and is hereby granted preventing any dealings with L.R. Aguthi/Muruguru/400 pending the hearing and determination of the main suit.
- 4.The Defendant is hereby granted unconditional leave to defend the suit and in that regard the Defendant shall file his defence and counterclaim, if any, within 14 days from the date hereof.
- 5.Costs of the application shall be in the cause.
- 6.The parties shall be at liberty to fix the matter for pre-trial directions within 30 days upon the close of pleadings.
- Jurisdiction invoked
- Sections 1 and 1A of the Civil Procedure Act (Cap. 21), Section 19 of the Environment and Land Court Act and Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Gachini Gitonga v Stephen Ndirangu Muriithi [2021] KEELC 3599 (KLR)", Case Analysis (2021). ELC Case (Nyeri) - plaint dated 24th May, 2012 over L.R. No. Aguthi/Muruguru/400. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3599/eng@2021-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.