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ELCPartially AllowedNairobi ELC Case No 517 of 2017 (formerly Nairobi CMCC No 1468 of 2008)· [2021] KEELC 4716 (KLR)

Surinderpal Singh Syan & 2 others v Wanyiri Kihoro [2021] KEELC 4716 (KLR)

Environment and Land Court
14 January 2021
BEB M Eboso
2,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Nairobi court set aside a default judgment won through a newspaper-advertised hearing, reviving a property dispute — but refused to return the evicted defendant to the premises.

What this practically means

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Executive summary

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The 1st and 2nd plaintiffs, executors of the will of Ranjeet Singh Syan (deceased), together with the 3rd plaintiff, sued the defendant for eviction from LR No 1/205, Kayahwe Road, Nairobi, and mesne profits of Kshs 760,000 plus Kshs 40,000 monthly, alleging the defendant occupied the property as a trespasser after the tenancy of his late wife, Dr Wanjiru Kihoro, lapsed in 2003. The defendant counterclaimed that his late wife had exercised an option to purchase the property, paid UK$ 60,000 and obtained a conveyance, and sought a declaration of ownership and refunds of rent paid after the alleged sale. After service of a hearing notice by newspaper advertisement, the suit proceeded ex parte before Eboso J and on 5/3/2020 judgment was entered for the plaintiffs; the decree was executed and the defendant evicted on 27/11/2020. The defendant then moved to set aside the judgment, contending he was never served. The court applied the James Kanyiita Nderitu criteria for setting aside regular default judgments and, noting it was probable the defendant had not seen the newspaper notice, set aside the judgment of 5/3/2020 to allow the suit to proceed inter partes. However, the court declined to reinstate the defendant into the property, noting the documents he relied on were subject to criminal charges, the plaintiffs held title, and reinstatement would effectively evict the plaintiffs. Instead, it preserved the property under Order 40 rule 1, leaving the plaintiffs in possession but barring disposal or charging, fixed an early hearing date, and ordered costs of the application in the cause.

Key legal issues

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01

Whether the regular ex parte judgment should be set aside

Holding

Yes - probable non-sight of the newspaper-advertised hearing notice plus a defence and counterclaim raising triable issues justified setting aside the judgment of 5/3/2020

Reasoning

The defendant had filed a defence and counterclaim; his only default was non-attendance at the substantive hearing. Service of the hearing notice was by newspaper advertisement, making it probable he did not see it. The James Kanyiita Nderitu criteria were met, warranting exercise of the unfettered discretion under Order 10 rule 11 to set aside the judgment so the suit could be heard inter partes.

p. 3
02

Whether the defendant should be reinstated into the suit premises

Holding

No - reinstatement refused; instead an interlocutory preservation order under Order 40 rule 1 was issued, leaving plaintiffs in possession but restraining disposal or charging

Reasoning

The memorandum of sale and conveyance relied on were the subject of criminal charges against the defendant; it was unclear whether the 3rd plaintiff alone could sell and convey the property; the execution was regular; and the plaintiffs remained registered proprietors. Reinstatement would effectively evict the title-holding plaintiffs, so the court preserved the property pending full hearing.

p. 4

Legal principles established

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  • A regular default judgment may be set aside under Order 10 rule 11 in the court's unfettered discretion, considering reason for default, delay, triable issues, prejudice and the interest of justice
  • Service of a hearing notice by newspaper advertisement makes it probable the defendant did not see it, providing proper basis to set aside a regular ex parte judgment so the defendant may be heard

Court orders

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  1. 1.The Judgment dated 5/3/2020 is set aside
  2. 2.The suit property shall remain in possession of the plaintiffs but shall not be disposed or charged, pending the hearing and determination of this suit
  3. 3.A hearing date for this suit to be set at the time of reading the ruling
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (1)

  • James Kanyiita Nderitu & another v Marios Phillotas Chikas & another
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction over transferred suit (Milimani CMCC No 1468 of 2008 transferred to ELC by order of 10/5/2017); discretionary jurisdiction under Order 10 rule 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, "Surinderpal Singh Syan & 2 others v Wanyiri Kihoro [2021] KEELC 4716 (KLR)", Case Analysis (2021). Nairobi ELC Case No 517 of 2017 (formerly Nairobi CMCC No 1468 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4716/eng@2021-01-14

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