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ELCDismissedNot stated in the excerpt (Nakuru ELC suit; related: Nakuru CMC Misc Application No. 74 of 2019)· [2022] KEELC 1853 (KLR)

Mansukhalal Jamnadas Morjaria v Narendra Chandulal Nagra & 3 others [2022] KEELC 1853 (KLR)

Environment and Land Court
3 February 2022
2,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to overturn a land judgment won by default because the defendant, properly served through a newspaper advert, never showed a real defence to the claim.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (J M Mutungi, J) on a Notice of Motion dated 17th August 2021 by the 1st defendant seeking stay of execution, setting aside and/or review of the judgment delivered on 15th June 2021, and leave to file a defence out of time. The applicant asserted he was never served with the pleadings and only learnt of the suit upon service of the judgment. The plaintiff, through his attorney, opposed the application, showing that the court had granted leave for substituted service by advertisement in the Daily Nation on 27th January 2020 with an affidavit of service filed on 24th February 2020. The plaintiff further contended the applicant's alleged title was fraudulent, his searches were impossible while the deed file was missing, and that the applicant may be a fictitious person involved in a choreographed attempt to wrestle the property from an elderly and sickly plaintiff. The court framed the principal issue as whether its discretion should be exercised to set aside the exparte judgment. Applying James Kanyiita Nderitu, Shah v Mbogo and Patel v East African Cargo Handling Services Ltd, the court held the substituted service was valid, making the judgment regular, and that it could not be set aside solely on the ground of non-service. The applicant failed to explain how he acquired the suit property, exhibiting no sale agreement, transfer instrument, or evidence of paying rates, so his certificate of lease remained unsupported and suspicious, while the plaintiff's root of title was clearly demonstrated. The court declined to exercise its discretion in the applicant's favour, finding no triable issue, and dismissed the application with costs to the plaintiff against the 1st defendant.

Key legal issues

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01

Regularity of substituted service and the character of the default judgment

Holding

Service by advertisement in the Daily Nation with leave of the court and a filed affidavit of service was regular; the resulting judgment was a regular one that cannot be set aside solely on the ground of non-service

Reasoning

The plaintiff, unable to trace the 1st defendant for personal service, obtained leave for substituted service by advertisement in the Daily Nation of 27th January 2020 and filed an affidavit of service on 24th February 2020. Under Order 5 of the Civil Procedure Rules substituted service with leave is valid. The 1st defendant was therefore properly and regularly served, making the default judgment a regular one.

p. 3
02

Whether the 1st defendant demonstrated a defence raising triable issues

Holding

No triable issue was demonstrated; the 1st defendant did not explain how he acquired the suit property and his certificate of lease was unsupported and suspicious, while the plaintiff's root of title was clearly documented

Reasoning

The applicant neither deponed to the circumstances of his registration as owner nor exhibited any sale agreement, instrument of transfer, or evidence of paying rates or rent. His certificate of lease dated 19th May 2016 was unsupported and remains suspicious. By contrast, the plaintiff traced his title through transmission pursuant to a proved will and confirmed grant. Accordingly the draft defence disclosed no prima facie triable issue.

p. 3
03

Exercise of the court's discretion to set aside an exparte judgment

Holding

The discretion, though wide, is to be exercised judicially to avoid injustice, and will not be used to assist a person who has deliberately sought to obstruct or delay the course of justice

Reasoning

Relying on Shah v Mbogo, Patel v East African Cargo Handling Services Ltd and James Kanyiita Nderitu, the court held that the discretion to set aside default judgment takes into account the reason for default, the existence of triable issues, prejudice, and the interest of justice. A denial of the right to be heard should be a last resort, but setting aside a regular judgment would delay justice where the defence is hopeless and sham.

p. 3

Legal principles established

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  • Substituted service effected with leave of the court under Order 5 of the Civil Procedure Rules is a valid and regular mode of service, and a judgment so obtained is a regular judgment
  • Where service was regular, an applicant for setting aside default judgment must demonstrate a defence on merits raising triable issues; if no viable defence is discernible, leave to defend will be refused

Court orders

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  1. 1.The Notice of Motion dated 17th August 2021 is dismissed
  2. 2.Costs of the application awarded to the plaintiff as against the 1st defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(d)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 5
  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (3)

  • James Kanyiita Nderitu & Another -vs- Marius Phillotas Chikas & Another
    (2016) eKLR
  • Shah -vs- Mbogo
    (1967) EA 166
  • Patel -vs- East African Cargo Handling Services Ltd
    (1974) EA 75
Jurisdiction invoked
Inherent discretion under Article 159(d) of the Constitution and Order 12 Rule 7, Order 22 Rule 25 and Order 45 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, "Mansukhalal Jamnadas Morjaria v Narendra Chandulal Nagra & 3 others [2022] KEELC 1853 (KLR)", Case Analysis (2022). Not stated in the excerpt (Nakuru ELC suit; related: Nakuru CMC Misc Application No. 74 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1853/eng@2022-02-03

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