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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 693 (KLR)

James Mulwa Malunda & 2 others v National Water Conservation & Pipeline Corporation [2022] KEELC 693 (KLR)

Environment and Land Court
16 March 2022
TMT. Murigi
2,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a default judgment against a state water agency, ruling everyone deserves a fair hearing even after missing a lawsuit.

What this practically means

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 26th April 2021 seeking to set aside an ex parte judgment delivered on 24th April 2018 in a land dispute, together with a stay of execution of the decree, lifting of an injunction on the suit properties, and leave to file a defence. The Defendant, formerly the National Water Conservation & Pipeline Corporation and renamed the National Water Harvesting and Storage Authority under the Water Act 2016, explained that during its restructuring it moved offices and misplaced files, and only learnt of the judgment when served with a copy of the judgment and decree. The Plaintiffs opposed, contending that service of summons on the Defendant's Managing Director on 26th May 2017 was acknowledged, that the judgment was regular, and that the Defendant had shown no bona fide defence or affidavit of means. The court framed one issue: whether the ex parte judgment and consequential orders should be set aside. Accepting that service was not in dispute but that the restructuring explanation was plausible and excusable, the judge invoked Order 10 Rule 11, Article 50 of the Constitution and the audi alteram partem principle, holding that denying a party the chance to be heard would be a miscarriage of justice and that no prejudice would result from a hearing on the merits. The application was allowed: the ex parte judgment and all consequential orders were set aside, the Defendant was granted 21 days to file and serve its defence, and each party was to bear its own costs. The application relied on the authorities of Gulf Fabricators, James Kanyiita Nderitu, Shah v Mbogo, Wachira Karani, Multiscope Consulting and Chemwolo v Kubende, the last of which the court applied.

Key legal issues

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01

Whether the ex parte judgment and consequential orders should be set aside

Holding

The application was allowed; the Applicant's explanation for failing to enter appearance (restructuring under the Water Act 2016, change of name and misplaced files) was found plausible and excusable, and setting aside served the right to fair hearing without prejudice to the Respondents

Reasoning

The court accepted that service was effected on 26th May 2017 during a period of restructuring when the corporation changed its name and offices and misplaced files. Order 10 Rule 11 permits setting aside on just terms. Relying on Chemwolo v Kubende and the audi alteram partem principle under Article 50, the judge found denial of a hearing would be a miscarriage of justice and no prejudice would result from a merits hearing.

p. 3

Legal principles established

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  • Courts have discretionary power to set aside ex parte judgments to do justice between the parties, exercised to avoid injustice
  • A party who expresses the desire to be heard should not be denied the opportunity to defend its case, per the audi alteram partem rule and Article 50 of the Constitution

Court orders

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  1. 1.The ex parte judgment entered on 24th of April 2018 and all the consequential orders be and is hereby set aside
  2. 2.The Applicant is granted leave to file and serve its defence within 21 DAYS from the date of this ruling
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 1; Order 42 Rule 6; Order 51 Rule 1; Order 10 Rule 11; Order 6 Rule 1(1); Order 6 Rule 1(3)
  • Environment & Land Court Act 2011Section 39
  • Civil Procedure Act Cap 21 Laws of KenyaSection 3A
  • Water Act 2016establishment/restructuring of the Defendant
  • Constitution of Kenya 2010Article 50

Cases cited (6)

  • Gulf Fabricators Vs County Government of Siaya
    (2020) eKLR
  • James Kanyiita Nderitu & Another Vs Marlos Philotas Ghikas & Another
    (2016) eKLR
  • Shah Vs Mbogo and Another
    (1967) EA 116
  • Wachira Karani Vs Bildad Wachira
    (2016) eKLR
  • Multiscope Consulting Enginees Vs University of Nairobi & Another
    (2014) eKLR
  • Philip Kiptoo Chemwolo & Mumias Sugar Co. Ltd Vs Augustine Kubende
    (1982-88) KAR 1036
Jurisdiction invoked
Order 40 Rule 1, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 39 of the Environment & Land Court Act 2011 and Section 3A of the Civil Procedure Act; power under Order 10 Rule 11 to set aside ex parte judgment

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, "James Mulwa Malunda & 2 others v National Water Conservation & Pipeline Corporation [2022] KEELC 693 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/693/eng@2022-03-16

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