Lukase & another v Njiru Mihango Farmers Housing Scheme & another (Environment & Land Case 1088 of 2016) [2022] KEELC 2698 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the default judgment against the 2nd Defendant should be set aside
Yes - although service was proved, the 2nd Defendant resides on the suit plot and deserves an opportunity to be heard on his defence
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.
Whether the 2nd Defendant was served with summons
Service was proved on a balance of probabilities
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
#- 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
#- 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.The Draft Annexed Defence be deemed to be duly filed upon payment of the requisite fees
- 3.Parties to comply with Order 11 of the Civil Procedure Rules
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.