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ELCAllowedNot stated in excerpt· [2021] KEELC 4218 (KLR)

William Emasajaa Etyang v Siphora Amusugut Ebu [2021] KEELC 4218 (KLR)

Environment and Land Court
25 February 2021
1,599 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a seven-year-old default land judgment because the defendant was never properly served with hearing notices.

What this practically means

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Executive summary

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The defendant, Siphora Amusugut Ebu, moved the Environment and Land Court at Busia under sections 1A, 1B and 3A of the Civil Procedure Act and Order 10(11) of the Civil Procedure Rules seeking to set aside exparte proceedings, the exparte judgment of 4/12/2013 and the consequential register entries on North Teso/Kamuriai/762, and leave to defend the originating summons. She contended she was never served with summons, notice of entry of judgment or hearing notices, and that she was registered as owner pursuant to orders in BSA HC Suc. Cause No. 203 of 2011, being a grandchild of the registered owner Irupo Ichodo. The respondent, claiming through grant in BSA HC Suc. Cause No. 107 of 2011, maintained service was effected on 20/3/2013 and that the applicant's seven-year delay disentitled her to relief. Relying principally on Pithon Waweru Maina v Thuku Mugira and the regular/irregular default judgment distinction in James Kanyiita Nderitu, the court found that while service of summons was evidenced, there was no proof of service of the notice of entry of judgment or the hearing notice directed on 30/7/2013, and that the competing succession grants raised a triable defence requiring determination by the probate court of who should administer the estate. The court held the seven-year delay was explained. The application was allowed in terms of prayer (e), with thrown away costs of Kshs.10,000 to the respondent, payable within 30 days from 25/2/2021, in default execution to issue.

Key legal issues

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01

Whether service was proper

Holding

Service of summons alone was proved; no evidence of service of notice of entry of judgment or hearing notice, and the hearing notice direction of 30/7/2013 was not complied with.

Reasoning

The court noted the respondent annexed an affidavit of service of summons only, while the deputy registrar had on 30/7/2013 ordered service of a hearing notice, which counsel failed to effect. The judgment therefore proceeded without the required hearing notice, rendering the process defective and justifying exercise of the discretion to set aside.

p. 3
02

Whether a triable defence exists

Holding

Yes - the competing succession causes raise a triable issue as to who is entitled to administer the estate and hence to the suit land.

Reasoning

The applicant claimed registration pursuant to BSA HC Suc. Cause No. 203 of 2011 while the respondent relied on grant in BSA HC Suc. Cause No. 107 of 2011. The court held the probate court must first determine the rightful administrator before ownership of the land registered in the deceased's name can be resolved.

p. 3
03

Effect of the 7-year delay

Holding

The delay was explained - the applicant learnt of the judgment from documents in the succession proceedings - and did not bar the relief.

Reasoning

Although the application came seven years after the exparte judgment, the court accepted the explanation that the applicant discovered it from the respondent's affidavit in revocation/objection proceedings. Weighing the principles in Pithon Waweru Maina and the defective service, the court was satisfied there were sufficient grounds to set aside the judgment.

p. 3

Legal principles established

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  • Setting aside exparte judgment is discretionary; the court may exercise it on just terms even in the face of delay where a proper service on the hearing notice is lacking and a triable defence exists.
  • Where there has been no proper service, the court has no discretion but to set aside the judgment.

Court orders

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  1. 1.The application dated 19/8/2020 is allowed in terms of prayer (e)
  2. 2.The exparte proceedings, exparte judgment and decree of 4/12/2013 and consequential register entries are set aside and the defendant granted leave to enter appearance and defend the originating summons
  3. 3.Thrown away costs of Kshs.10,000 awarded to the Respondent, payable within 30 days from 25/2/2021, in default execution to issue

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure Actsection 143 (Cap 300)
  • Civil Procedure RulesOrder 10 rule 11 (incl. Order 10(11))
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 37 rule 8

Cases cited (7)

  • John Kiprono Chumo Vs Phillip Kipng’eno Langat
    (2017) eKLR
  • Pithon Waweru Maina Vs Thuku Mugira
    (1983) eKLR
  • Shah V Mbogo
    (1967) EA 116
  • Shabir Dir V Ram Parkash Anand
    (1955) 22 EACA 48
  • Kanji Naram V Velji Ramji
    (1954) 21 EACA 20
  • Smith V Middleton
    (1972) SC 30
  • James Kanyiita Nderitu & Ano Vs Mario Philotas & Ano
    (2016) eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 10(11) 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, "William Emasajaa Etyang v Siphora Amusugut Ebu [2021] KEELC 4218 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4218/eng@2021-02-25

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