William Emasajaa Etyang v Siphora Amusugut Ebu [2021] KEELC 4218 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether service was proper
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.
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.
Whether a triable defence exists
Yes - the competing succession causes raise a triable issue as to who is entitled to administer the estate and hence to the suit land.
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.
Effect of the 7-year delay
The delay was explained - the applicant learnt of the judgment from documents in the succession proceedings - and did not bar the relief.
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.
Legal principles established
#- 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
#- 1.The application dated 19/8/2020 is allowed in terms of prayer (e)
- 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.Thrown away costs of Kshs.10,000 awarded to the Respondent, payable within 30 days from 25/2/2021, in default execution to issue
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Order 10(11) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.