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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ex parte judgment entered on January 13, 2022 was regular
The judgment was regular because substituted service was properly ordered and effected, and the applicant admitted receiving subsequent pleadings via WhatsApp
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.
Whether the draft Defence raises triable issues justifying setting aside a regular judgment
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
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.
Legal principles established
#- 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
#- 1.The ex parte judgment entered on January 13, 2022 and all consequential orders be and are hereby set aside
- 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.Thereafter, the Defendant shall file and serve his draft Defence within seven (7) days from the date of the order
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.