Ituangu v Abdulrahim & 7 others; Gulam & another (Intended Interested Party) (Environment & Land Case 206 of 2017) [2022] KEELC 3855 (KLR)
The bottom line
#Malindi's Environment and Land Court set aside a 2019 ex parte land judgment, giving nine property owners a fresh chance to defend their title on the merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants met the threshold for setting aside the ex parte judgment of March 28, 2019
Yes; the Applicants demonstrated they were unaware of the suit until a newspaper advertisement on September 30, 2021, filed the application promptly, and there were outstanding issues including fraud, lis pendens and adverse possession requiring ventilation on the merits.
The court exercised its discretionary power under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules. It noted the Applicants' uncontradicted evidence of lack of knowledge of the suit, their prompt instruction of counsel, and the delay in service of pleadings. The Plaintiff's own post-judgment joinder application showed live issues existed. Justice required that the matter be heard on merit rather than rest on a default judgment.
Whether the application was filed after inordinate delay
No; the Applicants explained they became aware of the case through an advertisement in 2021 and filed the application promptly thereafter.
The court accepted the 2nd Defendant's affidavit evidence that knowledge of the suit was acquired on September 30, 2021 through a Standard Newspaper advertisement, and that the application filed on November 22/24, 2021 followed promptly. Delay alone was therefore not a bar, though the Plaintiff alleged internal contradictions in the dates the Applicants gave for becoming aware of the suit.
Legal principles established
#- The court's discretion to set aside an ex parte judgment is free and is to be exercised to avoid injustice or hardship, but not to assist deliberate conduct intended to obstruct or delay the course of justice.
- An application to set aside an ex parte judgment cannot succeed if no good or substantial reasons are given to justify the setting aside.
- The discretion should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.
Court orders
#- 1.The judgment delivered on March 28, 2019 and all consequential decrees thereof are set aside
- 2.Defendants to file their responses within 14 days from the date of the ruling
- 3.Defendants to pay thrown away costs of Kshs 40,000 within 30 days, failing which the order lapses
- 4.Costs in the cause
- Jurisdiction invoked
- Inherent discretion under Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules to set aside or vary an ex parte judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ituangu v Abdulrahim & 7 others; Gulam & another (Intended Interested Party) (Environment & Land Case 206 of 2017) [2022] KEELC 3855 (KLR)", Case Analysis (2022). Malindi High Court Civil Case (Originating Summons dated September 28, 2017) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3855/eng@2022-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.