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ELCAllowedMalindi High Court Civil Case (Originating Summons dated September 28, 2017) - number not stated in judgment· [2022] KEELC 3855 (KLR)

Ituangu v Abdulrahim & 7 others; Gulam & another (Intended Interested Party) (Environment & Land Case 206 of 2017) [2022] KEELC 3855 (KLR)

Environment and Land Court (delivered at Malindi)
21 June 2022
1,968 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling on a Notice of Motion dated November 22, 2021 by the 1st to 9th Defendants seeking to set aside or vary an ex parte judgment delivered on March 28, 2019 in an adverse possession claim over land parcel Mgumo/Pasta/Mazeras/1064. The Applicants, whose title had devolved through the estate of Abdulrahim Pirmohmed Kamalkhan, deponed that they only learnt of the suit on September 30, 2021 through a Standard Newspaper advertisement, were yet to be supplied with pleadings, and that the Plaintiff had procured a new title and registered a caution without disclosure of material facts. The Plaintiff opposed, asserting over 12 years' occupation, alleging dishonesty and internal contradictions in the Applicants' account of when they learnt of the suit, and contending that any transfer to the 1st Interested Party during the pendency of the suit was a nullity. The court framed a single issue: whether the Applicants met the threshold for setting aside the judgment. Applying Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules and authorities including KCB v Nyatenge, the court held the discretion was free but to be exercised to do justice; given the Applicants' lack of notice, prompt application, outstanding issues of fraud, lis pendens, adverse possession and a deceased's estate, and the Plaintiff's own post-judgment joinder application, the interest of justice required a hearing on the merits. The court allowed the application, set aside the March 28, 2019 judgment and consequential decrees, directed the Defendants to file responses within 14 days, awarded thrown away costs of Kshs 40,000 payable within 30 days (failing which the order lapses), and made costs in the cause.

Key legal issues

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01

Whether the Applicants met the threshold for setting aside the ex parte judgment of March 28, 2019

Holding

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.

Reasoning

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.

p. 5
02

Whether the application was filed after inordinate delay

Holding

No; the Applicants explained they became aware of the case through an advertisement in 2021 and filed the application promptly thereafter.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The judgment delivered on March 28, 2019 and all consequential decrees thereof are set aside
  2. 2.Defendants to file their responses within 14 days from the date of the ruling
  3. 3.Defendants to pay thrown away costs of Kshs 40,000 within 30 days, failing which the order lapses
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 21 [1]
  • Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice

Cases cited (7)

  • Mbogo =vs= Shah
    (1968) E.A
  • Esther Wamaitha Njithia & 2 others =vs= Safaricom Limited
    (2014) eKLR
  • Patel -v- E.A. Handling Services Ltd
    (1974) EZ 75
  • Tree Shade Motor Ltd -v- D.T. Dobie Co. Ltd
    CA 38 of 1998
  • Mania -v- Muriuki
    (1984) KLR 407
  • Kenya Commercial Bank Limited vs. Nyatenge & Another
    (1990) KLR 443
  • Departed Aseans Property Custodian Board v Issa Bakuya
    Civil Appeal No. 18 of 1991
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

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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, "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.