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ELCAllowedNyahururu ELCA ( Appeal ) E007 of 2021 (as numbered in the record; appeal from Nyahururu CMCC No 304 of 2017)· [2023] KEELC 744 (KLR)

Njoroge & another v Mungai (Environment and Land Appeal 10 of 2019) [2023] KEELC 744 (KLR)

Environment and Land Court of Kenya
9 February 2023
YAY. M. Angima
2,878 words in judgment
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The bottom line

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Kenya's Environment and Land Court threw out a judgment obtained without proper notice, ruling that irregular default judgments must be set aside as a right.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyahururu against a ruling of Hon SN Mwangi (SRM) of July 9, 2019 in Nyahururu CMCC No 304 of 2017, which dismissed the Appellants' application to set aside an interlocutory judgment and a final ex parte judgment entered against them in a trespass suit over Title No. Nyandarua/Ol Kalou South/9. The Respondent had sued for a permanent injunction, general and special damages of Kshs 1,212,937.50, alleging that the Appellants demolished structures on his parcel in March 2017. Interlocutory judgment was entered on December 6, 2017 and ex parte judgment on January 15, 2019, awarding general damages of Kshs 100,000 with the suit allowed as prayed. Angima J identified two issues: whether the trial court erred in dismissing the setting-aside application, and costs. The court held that interlocutory judgment was irregularly entered because Order 10 rule 6 of the Civil Procedure Rules applies only to claims for pecuniary damages only or detention of goods, whereas this claim included a permanent injunction; the applicable provision was Order 10 rule 9. It further held the ex parte judgment was irregular because the 1st Appellant, having entered appearance on December 19, 2017, was never served with mention or hearing notices, and the draft defences raised triable issues, including denial of trespass and a res judicata objection. Such irregular judgments must be set aside as a judicial duty, not as a matter of discretion. The appeal was allowed, the trial court's ruling set aside and substituted with an order allowing the Appellants' motion of February 22, 2019 in terms of orders (3), (4), (5) and (6), with costs of the appeal awarded to the Appellants.

Key legal issues

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01

Whether the interlocutory judgment was regularly entered

Holding

The interlocutory judgment was irregular because Order 10 rule 6 applies only to claims for pecuniary damages only or detention of goods, whereas the Respondent's claim included a permanent injunction.

Reasoning

The court examined Order 10 rule 6 and found the Respondent's plaint sought a permanent injunction in addition to damages, taking it outside the rule. The proper provision was Order 10 rule 9. The subordinate court therefore erred in purporting to enter interlocutory judgment on such a request, which was misconceived and a non-starter.

p. 5
02

Whether the ex parte judgment was irregular for want of hearing notice

Holding

The ex parte judgment was irregular at least against the 1st Appellant, who had entered appearance but was never served with mention or hearing notices.

Reasoning

Service of summons was admitted, but after entry of appearance the Respondent did not serve a mention notice for January 10 and March 13, 2018, nor a hearing notice for the formal proof of April 24, 2018. The Respondent's assertion that he was not 'advised' to serve notice amounted to an admission of non-service, rendering the ex parte judgment irregular.

p. 5
03

Whether the proposed defences raised triable issues

Holding

The draft defences raised triable issues, including denial of trespass, confinement of execution to Parcel 8, and a res judicata objection.

Reasoning

The trial court failed to consider the draft defences on record and made no finding that they were a sham. The 1st Appellant denied trespass and raised a preliminary objection on res judicata. These were issues worth investigating at trial, satisfying the Patel v EA Cargo Handling test of a triable issue warranting setting aside the judgment.

p. 5
04

Whether the appellate court should interfere with the trial court's discretion

Holding

Yes, because the trial court misdirected itself and failed to exercise its discretion judiciously; irregular judgments are set aside as of right.

Reasoning

Applying Shah v Mbogo, an appellate court interferes where the discretion was exercised on wrong principles or on mistaken facts. Having found both judgments irregular, no further factors were needed; setting aside was a judicial duty to protect the integrity of the process, not an exercise of discretion.

p. 6

Legal principles established

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  • Where an interlocutory or default judgment is irregularly obtained, it must be set aside as of right, not as a matter of discretion, to uphold the integrity of the judicial process.
  • Interlocutory judgment under Order 10 rule 6 of the Civil Procedure Rules is only available where the plaint is for pecuniary damages only or detention of goods; it is misconceived where a permanent injunction is sought.
  • A party who has entered appearance is entitled to service of mention and hearing notices before ex parte proceedings are taken.

Court orders

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  1. 1.The appeal be and is hereby allowed
  2. 2.The ruling and order of the trial court dated July 9, 2019 in Nyahururu CMCC No 304 of 2017 is set aside and substituted with an order allowing the appellants' notice of motion dated February 22, 2019 in terms of orders (3), (4), (5) and (6) thereof
  3. 3.The appellants are awarded costs of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 rule 6
  • Civil Procedure Rules, 2010Order 10 rule 9
  • Civil Procedure Rules, 2010Order 10 rule 11
  • Civil Procedure Rules, 2010Order 12 rule 7
  • Civil Procedure Rules, 2010Order 51 rule 1
  • Civil Procedure Act (cap 21)sections 1A and 3A
  • Civil Procedure Act (cap 21)section 27
  • Constitution of Kenyaarticles 50 and 159(2)

Cases cited (4)

  • Shah v Mbogo
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas
    [2016] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court at Nyahururu (Hon SN Mwangi, SRM)
Nyahururu CMCC No 304 of 2017 – Joseph Muchiri Mungai v Gilbert Chege Njoroge & Tango Auctioneers
Jurisdiction invoked
First appeal against ruling and order of the Senior Resident Magistrate's Court at Nyahururu

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, "Njoroge & another v Mungai (Environment and Land Appeal 10 of 2019) [2023] KEELC 744 (KLR)", Case Analysis (2023). Nyahururu ELCA ( Appeal ) E007 of 2021 (as numbered in the record; appeal from Nyahururu CMCC No 304 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/744/eng@2023-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.