Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2023] KEELC 851 (KLR)

Crest Properties Limited & another v First Quantum Holdings Limited; English Press Limited (Intended Defendant) (Environment & Land Case 754 of 2012) [2023] KEELC 851 (KLR)

Environment and Land Court
16 February 2023
2,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court set aside a default land judgment, letting the defendants defend the case after paying costs and joining the affected property owner.

What this practically means

#

Executive summary

#
This is a ruling on twin applications arising from an ex parte judgment of May 28, 2020 by which this court, in a land sale dispute over LR No 209/8786/2 Industrial Area and LR No 209/9482 Dandora, entered judgment against First Quantum Holdings Limited, including a permanent injunction, a declaration that the transfer was fraudulent and illegal, specific performance for payment of Kshs 46,000,000, cancellation of the transfer, general damages of Kshs 500,000 and costs. The 1st defendant applied to set aside the ex parte judgment, alleging it was never served and that it had a strong defence and counterclaim, having paid more than the agreed purchase price. English Press Limited, the registered proprietor of the Industrial Area property since a 2014 transfer from the 1st defendant, sought joinder and setting aside of the judgment after the Chief Land Registrar notified it of the cancellation order. The plaintiffs opposed, asserting proper substituted service and prejudice after ten years of litigation. Applying Order 10 rule 2 and Civicon Limited v Kivuwatt Limited, the court held English Press was a necessary party since its title was directly affected and it was neither joined nor served. It found the draft defence raised triable issues on whether the purchase price was fully paid, best determined on the merits, while recognizing the plaintiffs' right to enjoy the fruits of judgment. The court joined English Press as 2nd defendant, set aside the ex parte judgment on condition that the 1st defendant pay Kshs 150,000 thrown away costs within 14 days, directed service and filing of defences within 14 days, with the judgment to stand in default, and ordered the costs of the application to abide the suit's outcome.

Key legal issues

#
01

Joinder of a party with a direct proprietary interest in the suit property

Holding

English Press Limited, as registered proprietor of LR No 209/8786/2 following a 2014 transfer from the 1st defendant, was a necessary party and was joined as 2nd defendant.

Reasoning

The court applied Order 10 rule 2 and Civicon Limited v Kivuwatt Limited, holding that any party reasonably affected by pending litigation is a necessary and proper party. English Press was neither joined nor served, learned of the judgment only via a Registrar's routine notification, and its title faced cancellation. It demonstrated sufficient interest, which need not be the kind that must succeed at trial.

p. 5
02

Setting aside ex parte judgment entered after substituted service

Holding

The judgment of May 28, 2020 was set aside on terms, conditioned on payment of Kshs 150,000 thrown away costs, with trial participation timelines imposed on the defendants.

Reasoning

The court held its discretion to set aside default judgment is unlimited except as to just terms, aimed at doing justice rather than rewarding deliberate obstruction. The 1st defendant's draft defence and counterclaim raised triable issues on whether the purchase price was fully paid, best determined on the merits. Yet the plaintiffs, as successful litigants, had a right to enjoy the fruits of judgment, justifying conditions.

p. 6
03

Leave under Order 9 rules 9 and 10 for new counsel

Holding

Leave was unnecessary as the 1st defendant had never been previously represented; the rule applies only to a change of advocates.

Reasoning

The court reasoned that Order 9 rules 9 and 10 govern change of advocates where a party was previously represented. Since the 1st defendant had never had counsel on record, the firm of Bansbury Associates Advocates LLP could come on record without leave.

p. 5

Legal principles established

#
  • In setting aside an ex parte judgment the court considers both the reason for the default and whether a reasonable defence raising triable issues is disclosed, and its discretion is wide and exercised to do justice between the parties.
  • The court's power to set aside a default judgment may be exercised subject to conditions, such as payment of thrown away costs or a specified sum into court.

Court orders

#
  1. 1.English Press Limited joined to the suit as the 2nd defendant
  2. 2.The ex parte judgment delivered on May 28, 2020 set aside on condition that the 1st defendant pay Kshs 150,000 as thrown away costs to the plaintiffs within 14 days of the ruling
  3. 3.The plaintiff to serve the defendants with copies of pleadings, statements and exhibits within 14 days of the ruling
  4. 4.The defendants to file and serve their respective defences and counterclaim(s), witness statements and trial bundles within 14 days of receipt of the plaintiff's pleadings
  5. 5.In default of the timelines imposed on the defendants, the judgment of May 28, 2020 shall stand and the plaintiffs may execute it forthwith
  6. 6.Costs of the application to abide the final outcome of the suit

Authorities

#

Legislation

  • Civil Procedure RulesOrder 10 rule 2
  • Civil Procedure RulesOrder 9 rules 9 and 10
  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (3)

  • Civicon Limited v Kivuwatt Limited and 2 others
    [2015] eKLR
  • Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel Oebal
    (2014) eKLR
  • Rayat Trading Co Limited v Bank of Baroda & Tetezi House Ltd
    [2018] eKLR
Jurisdiction invoked
Inherent and case-management powers under the Civil Procedure Act and Civil Procedure Rules, 2010 (Order 9 rules 9 and 10; Order 10 rule 2) to set aside ex parte judgment and add parties

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Crest Properties Limited & another v First Quantum Holdings Limited; English Press Limited (Intended Defendant) (Environment & Land Case 754 of 2012) [2023] KEELC 851 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/851/eng@2023-02-16

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