Phillip Mutiso Mulalya v Samuel Dominic Muathe & 2 others [2022] KEELC 1033 (KLR)
The bottom line
#A Machakos land court set aside a judgment won without a hearing, restoring defendants' land rights and giving them a chance to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Whether to set aside the regular ex parte judgment
Set aside, as the Applicants gave a reasonable explanation that they did not see the newspaper advertisement and have a reasonable defence raising triable issues
Although service by substituted advertisement made the judgment regular, the court held that not everyone reads newspapers and the presumption of notice is rebuttable. The purpose of service is to make a defendant aware of the suit; where that fails, substantive justice is defeated. The Applicants' innocent purchaser plea, backed by a search, sale agreement, payment evidence, transfer documents and land control board consent, raised triable issues meriting a full hearing.
Whether to cancel the Plaintiff's title and rectify the register
Granted; having set aside the judgment and consequential orders, the pre-judgment position must be restored
The court reasoned that once the ex parte judgment and all consequential orders were set aside, the parties must revert to the position they held prior to the entry of judgment, which made the prayer for cancellation of the title issued under that judgment and rectification of the register merited.
Whether a temporary injunction should issue
Refused; the Applicants had no pending suit/claim or prima facie case against the Plaintiff
Applying Order 40 Rule 1 and the Giella v Cassman Brown principles as restated in Nguruman, the court found all three conditions must be satisfied sequentially. The Applicants had not yet filed their defence or any claim, so there was no prima facie case on which irreparable injury or balance of convenience could rest, and the balance of convenience favoured rejecting the injunction.
Legal principles established
#- Setting aside an ex parte judgment is discretionary where the judgment is regular, but the court ought to set it aside ex debito justitiae where it is irregular; in both cases the court's concern is substantive justice
- Substituted service rests on a rebuttable presumption that the defendant will see the advertisement; where that outcome is not achieved, subsequent proceedings will not result in substantive justice
- A temporary injunction requires an existing suit/claim anchoring a prima facie case; without a filed case there is no foundation for the order
Court orders
#- 1.Ex parte judgment delivered on 12th June 2020, the decree issued on 15th June 2020 and all consequential orders including the one issued on 19th February 2021 are set aside and the 2nd and 3rd Defendants granted leave to defend the Plaintiff's suit
- 2.Order cancelling the title deed issued in favour of the Plaintiff and rectifying the register reverting land parcel number Donyo Sabuk/Komarock Block 1/16 to the 2nd and 3rd Defendants
- 3.Status quo after cancellation of the title deed and reversion to be maintained; no subsequent transfer or registration of any dealings in respect of the suit property pending hearing and determination of the suit
- 4.2nd and 3rd Defendants granted leave of 14 days of the ruling to file and serve their defence and any other pleadings
- 5.Costs to abide the determination of the suit
- Jurisdiction invoked
- Inherent discretion of the court under the Civil Procedure Rules (Order 10 setting aside of ex parte judgment; Order 40 temporary injunctions); Article 50 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phillip Mutiso Mulalya v Samuel Dominic Muathe & 2 others [2022] KEELC 1033 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1033/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.