Kuria v Kemeli (Environment and Land Case Civil Suit 56 of 2017) [2022] KEELC 3648 (KLR)

The court examined the affidavit of service sworn by the plaintiff's counsel, the hearing notice and the Postal Corporation registration posting slip, all bearing the defendant's name and P O Box 446, Kitale - the same address she gave in her defence and in her own supporting affidavit sworn in 2021. Her failure to identify any falsehood in the affidavit of service, and her continued use of the allegedly closed box, discredited her claim of non-service. A hearing right does not avail a party who squandered the opportunity she was given.

The defence of six paragraphs admitted substantial parts of the plaint, including that a balance of Kshs 150,000/= remained outstanding, and denied other paragraphs without any averments. The applicant did not plead how or when the balance was paid or tendered. Her submission that Kshs 150,000/= was too small a sum to justify eviction was misplaced, since the issue was breach of contract. Allowing her to testify would lead to the same result: judgment for the plaintiff.

The court held that because the suit proceeded to hearing in the absence of the defendant, Order 12 rule 7 governed, rendering all other provisions invoked (except article 159(2)) irrelevant and there being no basis for Order 45 review. Relying on Shah v Mbogo, Patel v EA Cargo Handling Services and related authorities, the court applied the principles that the discretion exists to avoid injustice from accident, inadvertence or excusable mistake, but requires the applicant to show sufficient cause for non-attendance.