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ELCPartially AllowedELC Case (judgment dated 4th/9th October 2019; related Misc. Application No. E127 of 2021)· [2022] KEELC 2698 (KLR)

Lukase & another v Njiru Mihango Farmers Housing Scheme & another (Environment & Land Case 1088 of 2016) [2022] KEELC 2698 (KLR)

Environment and Land Court
12 May 2022
966 words in judgment
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The bottom line

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The Environment and Land Court set aside a 2019 default judgment against a land occupier, but only on condition he pays Kshs.15,000 in costs within 21 days.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (L. Komingoi, J) on a notice of motion dated 3rd September 2021 by the 2nd Defendant, Liyo Chando, seeking setting aside of a default judgment and decree entered against him, together with unconditional leave to defend. He claimed he was never served with the plaint and summons and only learnt of the suit when served with an application in ELC Misc. Application No. E127 of 2021; he annexed a draft defence and asserted he had developed the plot, Plot No. 633 in Mihango, with permanent structures constituting his matrimonial home. The 2nd Plaintiff, Betty Habwe, opposed, relying on an affidavit of the process server Kelvin Balongo showing the applicant was pointed out to him by the 2nd Plaintiff. The court found service proved on a balance of probabilities, so the judgment was regular. Nevertheless, applying Patel v East Africa Cargo Handling Services Ltd on triable issues and natural justice principles, the court held the applicant, being in occupation of the suit plot, deserved an opportunity to explain how he got there. The court allowed the application conditionally: the judgment dated 4th October 2019, the decree and consequential orders were set aside on condition the applicant pays throw away costs of Kshs.15,000 to the Plaintiffs within 21 days; the draft defence was deemed filed upon payment of requisite fees; and parties were directed to comply with Order 11 of the Civil Procedure Rules.

Key legal issues

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01

Whether the default judgment against the 2nd Defendant should be set aside

Holding

Yes - although service was proved, the 2nd Defendant resides on the suit plot and deserves an opportunity to be heard on his defence

Reasoning

The court found on a balance of probabilities that the 2nd Defendant was served, the process server's affidavit showing he was pointed out by the 2nd Plaintiff. However, because he is in occupation of the suit plot with permanent structures, he must be heard on how he got there. Guided by Patel v East Africa Cargo Handling Services and natural justice principles, the court found a triable issue and set aside the judgment conditionally.

p. 2
02

Whether the 2nd Defendant was served with summons

Holding

Service was proved on a balance of probabilities

Reasoning

The affidavit of process server Kelvin Balongo sworn 3rd October 2016 stated the 2nd Defendant was pointed out by the 2nd Plaintiff who knew him. The court thus rejected the applicant's claim of non-service but still granted relief in the interest of justice.

Legal principles established

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  • A regular judgment will not usually be set aside unless the court is satisfied there is a defence on the merits raising a triable issue
  • Courts are enjoined by natural justice to ensure judgments are made after hearing all parties wherever avoidable

Court orders

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  1. 1.The judgment dated 4th October 2019, the decree and all consequential orders are set aside on condition that the 2nd Defendant/Applicant pays throw away costs of Kshs.15,000 to the Plaintiffs within 21 days from the date of the ruling
  2. 2.The Draft Annexed Defence be deemed to be duly filed upon payment of the requisite fees
  3. 3.Parties to comply with Order 11 of the Civil Procedure Rules

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 6; Order 10 rules 6, 10 and 11; Order 11; sections 1, 1A, 3 and 3A

Cases cited (3)

  • Patel v East Africa Cargo Handling Services Ltd
    [1974] EA 75
  • Jimnah Mwangi Irungu v Emily Wambui Wairimu
    [2021] eKLR
  • John Engineering and Design Limited
    [2016] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Order 6, Order 10 rules 6, 10 and 11 and sections 1, 1A, 3 and 3A 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, "Lukase & another v Njiru Mihango Farmers Housing Scheme & another (Environment & Land Case 1088 of 2016) [2022] KEELC 2698 (KLR)", Case Analysis (2022). ELC Case (judgment dated 4th/9th October 2019; related Misc. Application No. E127 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2698/eng@2022-05-12

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