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ELCPartially AllowedNot stated in the judgment (Ruling on Notice of Motion dated 3rd February 2022)· [2022] KEELC 2260 (KLR)

Matoya & another v Attorney General & 4 others (Environment & Land Case 24 of 2020) [2022] KEELC 2260 (KLR)

Environment and Land Court
4 May 2022
3,304 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a default land judgment because the defendant was never properly served, but refused to grant him an injunction protecting his possession.

What this practically means

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Executive summary

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The 4th Defendant, Henry Manyange Matoya, moved the court by Notice of Motion dated 3rd February 2022 seeking to set aside an ex-parte interlocutory judgment entered on 23rd September 2021 in a land suit over Kisii Municipality/Block 111/40, together with consequential orders, and seeking injunctions restraining the Plaintiffs from interfering with the property and the National Land Commission from rectifying the lease records. He contended he was never served with summons, that P.O. Box 301 Kisii used for service belonged to a stranger, and that he learned of the suit only when the 1st Plaintiff stormed his premises with police in January 2022. The 1st Plaintiff, Beatrice Matoya, maintained that service was properly effected through the post office and that the Applicant had used the same address in previous litigation. The court applied the principles for setting aside default judgments, distinguishing regular from irregular judgments. Finding service by post to a box no longer belonging to the Applicant, the court held that the ex-parte judgment was irregular and had to be set aside ex debito justitiae as a matter of right, in line with Article 50's fair-hearing guarantee. The judgment and all consequential orders were set aside, and the Applicant was granted 14 days to file his Defence, with all other Defendants likewise directed to file defences. However, the injunction prayers failed: the Applicant did not demonstrate a prima facie case, irreparable harm, or registration of the property in his name, satisfying none of the Giella v Cassman Brown conditions. Costs were made costs in the cause.

Key legal issues

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01

Whether the interlocutory judgment of September 23, 2021 should be set aside

Holding

Set aside, because service through P.O. Box 301 Kisii, which no longer belonged to the Applicant, meant he was not properly served; an irregular ex-parte judgment is set aside ex debito justitiae as a matter of right.

Reasoning

The Applicant denied knowledge of the suit and produced a letter showing P.O. Box 301 belonged to Gladys Ombongi. The process server's affidavit confirmed service by post to that box. If the summons never reached the Applicant, the judgment could not stand; the right to be heard under Article 50 required that he be accorded an opportunity to be heard, especially as he expressed interest in defending the suit.

p. 6
02

Whether temporary injunctions should issue against the Plaintiffs and the National Land Commission

Holding

Refused; the Applicant failed to satisfy the Giella v Cassman Brown principles.

Reasoning

Apart from possession since 1967 and a Certificate of Confirmation of Grant over a deceased's estate, the Applicant placed no material showing registration in his name; the lease had allegedly expired by the time of the grant. He also failed to demonstrate irreparable loss not compensable by damages, and triable issues would only emerge on pleadings and cross-examination.

p. 7

Legal principles established

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  • Where a defendant was not properly served, an ex-parte judgment is a nullity and must be set aside as of right, without regard to triable issues or delay
  • The right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system (Article 50)
  • Giella v Cassman Brown conditions govern the grant of a temporary injunction

Court orders

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  1. 1.The ex-parte judgment dated September 23, 2021 is set aside together with all consequential orders and proceedings thereto; the application for review dated October 7, 2021 is rendered moot.
  2. 2.The prayer for injunction against the Plaintiffs is disallowed.
  3. 3.The 4th Defendant shall file his Defence within 14 days from the date of the ruling.
  4. 4.This ruling to be served upon the 1st, 2nd, 3rd and 5th Defendants, who shall file their Defences within 14 days after service.
  5. 5.The costs of the application shall be in the cause.

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure RulesOrder 5 Rules 6, 7 and 8(1)
  • Civil Procedure RulesOrder 10 rule 11

Cases cited (13)

  • Yamko Yadpaz Industries Ltd v Kalka Flowers
    [2013] eKLR
  • Pithoni Waweru Maina v Thuka Mugiria
    Civil Appeal 27 of 1982; [1983] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Mbogo v Shah
    [1967] EA 93
  • Kanji Naran v Velji Ramji
    [1954] 21 EACA 20
  • Smith v Middleton
    [1972] SC 30
  • Patel v East Africa Cargo Handling Services Ltd
    [1974] EA 75
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Chemwolo & Another v Kubende
    [1986] KLR 492
  • CMC Holdings v Nzioki
    [2004] 1 KLR 173
  • Onyango Oloo v Attorney General
    [1986-1989] EA 456
  • Sangram v Election Tribunal Kotch
    AIR [1955] SC 664
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
Jurisdiction invoked
Inherent discretion under the Civil Procedure Rules (Order 10 rule 11) in an original civil suit; Article 50 of the Constitution on the right to a fair hearing

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, "Matoya & another v Attorney General & 4 others (Environment & Land Case 24 of 2020) [2022] KEELC 2260 (KLR)", Case Analysis (2022). Not stated in the judgment (Ruling on Notice of Motion dated 3rd February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2260/eng@2022-05-04

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