Crest Properties Limited & another v First Quantum Holdings Limited; English Press Limited (Intended Defendant) (Environment & Land Case 754 of 2012) [2023] KEELC 851 (KLR)
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
#Key legal issues
#Joinder of a party with a direct proprietary interest in the suit property
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.
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.
Setting aside ex parte judgment entered after substituted service
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.
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.
Leave under Order 9 rules 9 and 10 for new counsel
Leave was unnecessary as the 1st defendant had never been previously represented; the rule applies only to a change of advocates.
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.
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.English Press Limited joined to the suit as the 2nd defendant
- 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.The plaintiff to serve the defendants with copies of pleadings, statements and exhibits within 14 days of the ruling
- 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.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.Costs of the application to abide the final outcome of the suit
- 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.