Gitee & 12 others v Mbushiri (Environment & Land Case 864 of 2017) [2022] KEELC 3197 (KLR)
The bottom line
#A Kenyan court reopened a land case after finding doubt about whether the defendant was ever properly served with the lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant was properly served with the Originating Summons
The Court doubted the alleged service because the process server failed to annex the received and stamped copies of the served pleadings, which he was best suited to prove
The Return of Service stated the pleadings were served at the offices of Gathii Irungu & Co. Advocates and received and stamped copies returned to Court, but no such copies were annexed; only the process server's licence was annexed. The 7th Plaintiff's claim of service via annexure EMN1 was unexplained since the process server, not the Plaintiff, was best suited to prove service. Doubt as to service justified setting aside the ex parte proceedings.
Whether the Defendant should be allowed to file pleadings out of time and cross-examine the Plaintiffs' witnesses
Yes — the right to a fair hearing under Article 50 required the ex parte proceedings to be set aside and the case re-opened
A party may file pleadings any time before close of pleadings and thereafter with leave of Court. The discretion to set aside ex parte proceedings must be exercised on terms fair to both parties. Prejudice to the Plaintiffs can be compensated by damages (throw-away costs), but denial of the right to fair hearing cannot be quantified. Guided by Articles 48 and 159(2)(d) and Sections 1A, 1B and 3A of the Civil Procedure Act, the Court allowed the application.
Legal principles established
#- The discretion to set aside ex parte proceedings is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice
- Sufficient cause for setting aside ex parte proceedings is a question of fact to be determined in the varied and special circumstances of each case
- Denial of the right to fair hearing cannot be easily quantified, whereas prejudice in prosecuting a case may be compensated by damages
Court orders
#- 1.Leave granted to the Defendant to enter appearance and file his pleadings out of time within 15 days
- 2.Plaintiffs granted corresponding leave to respond to the Defendant's pleadings within 15 days upon service
- 3.Plaintiffs' case re-opened and their witnesses recalled to allow the Defendant to cross-examine them
- 4.Defendant to pay the Plaintiffs throw away costs of Kshs. 20,000/= within 30 days
- 5.In default of the pleading-filing and throw-away-costs orders, the application to stand dismissed
- Jurisdiction invoked
- Articles 48, 50 and 159(2)(d) of the Constitution of Kenya and Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction / fair hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitee & 12 others v Mbushiri (Environment & Land Case 864 of 2017) [2022] KEELC 3197 (KLR)", Case Analysis (2022). Originating Summons dated December 13, 2017 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3197/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.