Mahulo v Okello & 4 others (Environment and Land Case Civil Suit 150 of 2014) [2023] KEELC 592 (KLR)
The bottom line
#The court refused a defendant's bid to undo judgments against her because she was properly served with court papers and had no viable defence to the land claim.
What this practically means
#Executive summary
#Key legal issues
#Validity of service of summons on the 5th defendant
Service was properly effected; the unchallenged affidavit of service of Amos Eliud Osango established that the 5th defendant was served on June 9, 2014 at Ligega, Ukwala Sub-County
The 5th defendant did not challenge the process server's affidavit, did not deny that her home was near Ligega Market, and did not deny being at home on June 9, 2014. Under Miruka v Abok, the burden lay on her to show the return was incorrect, and she failed to discharge it.
Regularity of the interlocutory judgment entered on July 3, 2014
The interlocutory judgment was regular because it was entered after valid service and in default of appearance
Having found service proved, the court held the default judgment was regular and, absent any explanation for non-appearance, there was no basis for exercising its discretion to set it aside, particularly given the suit's age of 8 years and the plaintiff's advanced age.
Existence of an arguable defence
The 5th defendant had no triable issue: her claim rested on Plot No 28 which was cancelled from the adjudication map and record in 1985, and her draft defence contained no adverse possession claim
The parcel on which the claim was founded no longer existed, so the claim could not stand. The adverse possession assertion in the affidavit was not carried into the draft defence and no explanation was given of how it would be pursued in the suit, so no prima facie triable issue arose.
Whether the application was bona fide
The application was an afterthought timed suspiciously soon after final judgment, and the claim of learning of the suit only in December 2022 was not credible
Neighbours who had participated in the suit from the beginning would have told the 5th defendant of it earlier. The timing, coming immediately after the October 13, 2022 judgment, indicated a deliberate choice not to defend rather than ignorance of the suit.
Legal principles established
#- Where service is disputed, the burden lies on the party questioning service to show the return is incorrect; an unchallenged affidavit of the process server is sufficient evidence of regularity
- The court's discretion to set aside ex parte or default judgments must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately sought to obstruct justice
- A defence on the merits for purposes of setting aside a regular judgment means a triable issue, not a defence that must succeed
Court orders
#- 1.The 5th defendant's notice of motion application dated January 18, 2023 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Inherent and discretionary powers under Order 10 rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahulo v Okello & 4 others (Environment and Land Case Civil Suit 150 of 2014) [2023] KEELC 592 (KLR)", Case Analysis (2023). Not stated in the judgment (Kisumu Environment and Land Court suit relating to Title No Kisumu/Kanyakwar "A"/27). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/592/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.