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ELCPartially Allowed· [2022] KEELC 3598 (KLR)

Atabo (Suing as the Legal Representative of the Estate of the Late Sarah Atambo Esiron) v Land Registrar, Kitale & another (Environment & Land Case 54 of 2021) [2022] KEELC 3598 (KLR)

Environment and Land Court
20 July 2022
2,859 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court set aside a default land judgment because the defendant's draft defence raised triable issues, but he must pay costs within 14 days or lose that second chance.

What this practically means

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Executive summary

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The 2nd Defendant/Applicant moved the Environment and Land Court at Kitale by Notice of Motion dated April 13, 2022 seeking to set aside ex parte judgment entered on January 13, 2022, leave to file his Defence and Counterclaim out of time, and an order summoning the process server for cross-examination. He asserted he was never served with summons, that he is the absolute registered proprietor of parcel Kitale Municipality Block 16/Kaura Wa Bechau/75, purchased from the deceased Sarah Atambo Esiron, and in occupation for over 32 years. The Plaintiff/2nd Respondent opposed, showing that after personal service failed, the court granted leave for substituted service effected through advertisements in the Daily Nation and Standard newspapers, and that the Applicant later admitted via WhatsApp receiving pleadings. The court framed two issues: whether the judgment was regular, and whether the Defence raised triable issues. Guided by Pithon Waweru Maina v Thuka Mugiria and Patel v EA Cargo Handling Services, it held the judgment was regular because proper substituted service was effected. Nonetheless, the Applicant's draft Defence raised triable issues - purchase from the deceased and boundary/encroachment claims - which required a full hearing under the audi alteram partem principle. The court set aside the ex parte judgment and consequential orders, conditioned on the Applicant paying the Plaintiff thrown away costs of Kshs 30,000 within 14 days failing which the setting aside lapses, directed filing of the draft Defence within 7 days, and set the matter for mention on October 6, 2022. The prayer to cross-examine the process server was declined as service was substituted.

Key legal issues

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01

Whether the ex parte judgment entered on January 13, 2022 was regular

Holding

The judgment was regular because substituted service was properly ordered and effected, and the applicant admitted receiving subsequent pleadings via WhatsApp

Reasoning

The court found the Plaintiff demonstrated difficulty in personal service, moved the court, and obtained an order for substituted service by advertisement in the Daily Nation and Standard newspapers. The Applicant's WhatsApp admissions of receipt of documents on April 8 and 9, 2022 confirmed awareness of proceedings, establishing proper service and hence a regular interlocutory judgment.

p. 5
02

Whether the draft Defence raises triable issues justifying setting aside a regular judgment

Holding

Yes; the Defence raises triable issues (purchase of the suit parcel from the deceased, boundary/encroachment claims) that can only be determined at a full hearing

Reasoning

The Applicant's draft Defence raised claims of purchase from the deceased registered proprietor and contested the surveyor's encroachment findings. The court held that the doctrine of audi alteram partem obliges it to let all parties be heard, and that a single triable issue suffices to set aside an ex parte judgment even where the judgment is regular.

p. 5

Legal principles established

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  • Where judgment is regular, the court will set it aside only if satisfied there is a defence on the merits, i.e. a triable issue
  • Even where judgment is regular, a single triable issue suffices to justify setting aside an ex parte judgment in the interest of justice
  • If a judgment is irregular (no proper service), it must be set aside without further reference

Court orders

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  1. 1.The ex parte judgment entered on January 13, 2022 and all consequential orders be and are hereby set aside
  2. 2.The 2nd Defendant shall pay the Plaintiff thrown away costs in the sum of Kshs 30,000.00 within fourteen (14) days from the date of the order failing which the setting-aside orders automatically lapse without further reference to the court
  3. 3.Thereafter, the Defendant shall file and serve his draft Defence within seven (7) days from the date of the order
  4. 4.The matter to be mentioned on October 06, 2022 to confirm compliance and take further directions as to compliance with Order 11 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure ActSections 1B and 3A
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 5 Rule 22C
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaNot specified (right to be heard / audi alteram partem)

Cases cited (14)

  • Pithon Waweru Maina v Thuka Mugiria
    [1983] eKLR
  • Kanji Naran v Velji Ramji
    [1954] 21 EACA 20
  • Fort Hall Bakery Supply Company v Frederick Muigona Wargoe
    [1958] EA 118
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah v Mbogo
    [1969] EA 116
  • Jesse Kimani v McConnel
    [1966] EA 547
  • Mbogo v Shah
    [1968] EA 93
  • Sebei District Administration v Gasyali
    [1968] EA 300
  • Jamnadas v Sodha v Gordandas Hemraj
    (1952) 7 ULR 7
  • Smith v Middleton
    [1972] SC 30
  • Cookson v Knowles
    [1979] AC 556
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Gurcharan Singh s/o Kesar Singh v Khudadad Khan t/a Khudadad Construction Company
    Nairobi HCCC 1547 of 1969
  • The El Amria
    [1981] 2 Lloyd's Rep 539
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act and Order 22 Rule 22 and Order 10 Rule 11 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, "Atabo (Suing as the Legal Representative of the Estate of the Late Sarah Atambo Esiron) v Land Registrar, Kitale & another (Environment & Land Case 54 of 2021) [2022] KEELC 3598 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3598/eng@2022-07-20

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