Moses Wenani Zakaria v Metrine Nekesa Wamalwa; Julius Munyange Wafula & 3 (Interested Parties) [2022] KEELC 1112 (KLR)
The bottom line
#The Environment and Land Court in Bungoma refused to undo a 2018 default judgment, because the defendant waited nearly four years and offered no credible excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment was regular or irregular and whether it should be set aside
The judgment was regular; the defendant was personally served and the application to set it aside fails
The affidavit of service by Moses Kuloba Keya shows personal service on 8th July 2015 at 11:12 am near Tongaren Market. The defendant gave a bare denial without placing herself elsewhere. She also knew of the suit from May 2016 through a defence filed in a related case. Delay of three years and eight months was inordinate and unexplained, and the plaintiff had subdivided and sold the land to third parties who would be prejudiced.
Whether the draft defence and counter-claim raised triable issues
No triable issue capable of useful trial was raised; the claims were time-barred and the subject matter no longer exists
The counter-claim seeking eviction from BOKOLI/BOKOLI/1970 was founded on a 1964 purchase, caught by section 7 of the Limitation of Actions Act after fifty years. The fraud claim was time-barred under section 4(2), being filed over three years after registration in 2003. A useful trial could not proceed without joining the registered proprietors of the subdivisions.
Whether the interested parties should be joined as plaintiffs
The court cannot compel joinder as plaintiffs; a plaintiff controls the litigation
A plaintiff is the dominus litis and cannot be compelled to sue any party against his wish, as held in Santana Fernandes v Kara Arjan. The interested parties were also never served with the application despite a direction, and no orders could be made against non-parties regarding land that no longer exists.
Legal principles established
#- An irregular default judgment (entered against a defendant not served) must be set aside ex debito justiciae as a matter of right, whereas a regular default judgment is set aside only in the court's judicial discretion
- There is a presumption of service arising from a process server's affidavit of service, and the burden lies on the party denying service to demonstrate the contrary
- Under Order 22 Rule 6 of the Civil Procedure Rules, notice of entry of judgment is only required where execution is by payment, attachment or eviction
- A plaintiff as dominus litis cannot be compelled to sue any party against his wish
- Consolidation of suits can only be undertaken where two or more suits are pending
Court orders
#- 1.The Notice of Motion dated 3rd September 2021 is dismissed
- 2.The Notice of Motion dated 17th September 2021 is dismissed
- 3.Each party to meet their own costs of the two applications
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; applications under sections 3 and 3A of the Civil Procedure Act and Orders 1, 10, 12, 22 and 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Wenani Zakaria v Metrine Nekesa Wamalwa; Julius Munyange Wafula & 3 (Interested Parties) [2022] KEELC 1112 (KLR)", Case Analysis (2022). Bungoma ELC Case No 83 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1112/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.