Mansukhalal Jamnadas Morjaria v Narendra Chandulal Nagra & 3 others [2022] KEELC 1853 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Regularity of substituted service and the character of the default judgment
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
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.
Whether the 1st defendant demonstrated a defence raising triable issues
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
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.
Exercise of the court's discretion to set aside an exparte judgment
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 17th August 2021 is dismissed
- 2.Costs of the application awarded to the plaintiff as against the 1st defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.