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ELCAllowedNot stated in the excerpt (ELC suit, Milimani)· [2021] KEELC 4085 (KLR)

Alex Njogu v City Council of Nairobi & 2 others [2021] KEELC 4085 (KLR)

Environment and Land Court

2 March 2021

BEB M Eboso

1,296 words in judgment

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The bottom line

Kenya's Environment and Land Court set aside a default judgment because the defendant's lawyers were never told about the hearing.

What this practically means

Executive summary

This is a ruling by the Environment and Land Court at Milimani (Eboso J) on the 2nd defendant's notice of motion dated 9/9/2019 seeking to set aside the ex-parte judgment of Onyango J delivered on 7/5/2019 and its consequential decree. The original judgment had declared the re-allotment of Plot No. 346 in Jamhuri 11 (NAIROBI/BLOCK 63/465) to the 2nd defendant void ab initio, ordered cancellation of the 2nd defendant's title, and alternatively directed compensation of Kshs 8,500,000, with costs to the defendants jointly and severally. The single issue was whether the applicant met the criteria for setting aside an ex-parte judgment. Applying the Court of Appeal's framework in James Kanyita Nderitu, the court distinguished regular from irregular default judgments, holding that an irregular judgment - one entered against a defendant not served - must be set aside as of right. On the record, the 2nd defendant had entered appearance through Njeru Nyaga & Company Advocates (notice of appointment filed 18/1/2006), yet plaintiff's counsel told the court that the 2nd defendant had never entered appearance, and there was no evidence that the 2nd defendant's advocates were served with the hearing notice for 28/11/2018. The plaintiff's replying affidavit failed to address service. Finding the judgment irregularly procured, the court allowed the motion in terms of prayer 3, setting aside the ex-parte judgment, with costs in the cause. Prior findings of fraud against the 2nd defendant were therefore set aside to allow the matter proceed to a contested hearing.

Key legal issues

Whether the ex-parte judgment of 7/5/2019 was regular or irregular as against the 2nd defendant

Holding

The judgment was irregularly procured: the 2nd defendant's advocates were on record and were not served with the hearing notice for 28/11/2018, and plaintiff's counsel misled the court that the 2nd defendant had never entered appearance.

Reasoning

The court examined the record and found a notice of appointment by Njeru Nyaga & Company Advocates filed on 18/1/2006 for the 2nd defendant. Counsel for the plaintiff nonetheless told the court the 2nd defendant had never entered appearance, and the hearing proceeded ex-parte. The replying affidavit of 22/11/2019 failed to address service of the hearing notice, which was the key issue. A defendant on record who is unheard is condemned without notice, warranting setting aside.

p. 2

Legal principles established

A default judgment entered against a defendant who was not served or properly served is irregular and must be set aside as of right, ex debito justitiae.
In setting aside a regular default judgment the court considers reason for default, delay, triable issues, prejudice and the interest of justice.

Court orders

1.The notice of motion dated 9/9/2019 is allowed in terms of prayer 3 (setting aside the ex-parte judgment of 7/5/2019 and the consequential decree as against the 2nd defendant)
2.Costs shall be in the cause

Authorities

Legislation

Civil Procedure RulesOrder 10 rule 11

Cases cited (7)

James Kanyita Nderitu & Another v Marios Philotas Lihikas & Another
[2016] eKLR
Mbogo & Another v Shah
Patel v E.A. Cargo Handling Services Ltd
(1975) EA 75
Chemwolo & Another v Kubende
[1986] KLR 492
CMC Holdings v Nzioki
[2004] 1 KLR 173
Onyango Oloo v Attorney General
[1986-1989] EA 456
Sangram Singh v Election Tribunal, Koteh
AIR 1955 SC 664

Jurisdiction invoked: Discretionary jurisdiction to set aside ex-parte judgment under Order 10 rule 11 of the Civil Procedure Rules (as discussed via Court of Appeal authority)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Alex Njogu v City Council of Nairobi & 2 others [2021] KEELC 4085 (KLR)", Case Analysis (2021). Not stated in the excerpt (ELC suit, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4085/eng@2021-03-02

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