Witu Nyongoro Ranch Company Limited v Dofoe & 32 others (Environment & Land Case 100 of 2016) [2022] KEELC 2341 (KLR)
The bottom line
#A Kenyan court refused to undo a land judgment won without the defendants, because service of court papers was properly proven and their proposed defence raised no real issues.
What this practically means
#Executive summary
#Key legal issues
#Preliminary objection on non-compliance with Order 9 Rule 7
The preliminary objection fails because the defendants never participated in the suit, so no notice of appointment was required before filing the application.
Order 9 rule 7 requires notice of appointment only where a party who had sued or defended in person later appoints an advocate. The defendants never entered appearance and had no advocate on record previously, so the rule is inapplicable. Relying on Sitonik Ole Lotapash v Humphrey Mbugua Njache, the court found no legal requirement that a first-time applicant file a notice of appointment before an application.
Whether there was proper service of summons to enter appearance
Service was properly effected; the affidavit of service of Thomas Konde was prima facie proof and the defendants failed to rebut it or seek cross-examination on any specific inaccuracy.
The process server gave an elaborate account of serving the defendants at their houses, accompanied by officers of Nyongoro Conservation department and an employee of the plaintiff. The defendants only asserted they were not served without identifying any untruth in the affidavit, and did not challenge service of the hearing notices, indicating awareness of the suit. Their explanation was therefore implausible.
Whether the ex parte judgment should be set aside
The application fails: the judgment was regular, the defendants showed no sufficient cause, and the draft defence raised no triable issues.
Applying Shah v Mbogo and Patel v E.A. Cargo Handling, the discretion to set aside must be exercised judiciously to do justice but not to reward deliberate obstruction. Having found proper service, and having examined the draft defence and found mere general denials, the court found no basis to exercise its discretion in the applicants' favour. Their failure to file submissions as directed reinforced this conclusion.
Legal principles established
#- Order 9 rule 7 requiring a notice of appointment applies only where a party who had sued or defended in person later appoints an advocate; it does not apply to a party who never participated in the suit.
- Where service of summons is alleged to be improper, the court may call the process server for cross-examination under Order 5 rule 16, but an unrebutted affidavit of service is prima facie evidence of due service.
- Setting aside an ex parte judgment is discretionary; the discretion will not be exercised to assist a party whose deliberate conduct obstructed or delayed the course of justice.
- Even where service is valid, a default judgment will be set aside if the draft defence raises a triable issue; a defence on merit need only raise a triable issue, not one that must succeed.
Court orders
#- 1.The Notice of Motion dated 17th September 2021 is dismissed with costs to the plaintiff.
- 2.The plaintiff's preliminary objection is also dismissed.
- 3.Costs to the plaintiff.
- Jurisdiction invoked
- Order 12 Rule 7 and Order 10 rule 11 of the Civil Procedure Rules, 2010 (discretion to set aside ex parte judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Witu Nyongoro Ranch Company Limited v Dofoe & 32 others (Environment & Land Case 100 of 2016) [2022] KEELC 2341 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2341/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.