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ELCDismissedEnvironment & Land Case 3 of 2018· [2023] KEELC 15739 (KLR)

Kiarie Mugo Michael v Moses Gitau Mwangi

Environment and Land Court
23 February 2023
LGL. N. Gacheru
2,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendant/applicant moved the court by notice of motion dated September 8, 2022 seeking stay of execution of the judgment delivered October 11, 2018, setting aside of that default judgment and all consequential eviction orders, and unconditional leave to defend the suit. He contended he was never served with summons, that he had occupied the suit property, Makuyu/Kariaini/Block 1/380, since 1994, and that the plaintiff obtained the title fraudulently. The plaintiff/respondent opposed, filing an affidavit of service sworn February 1, 2018 by process server Boniface Ng'ang'a Ngaara showing service at the defendant's home, and noting the defendant's prior involvement in a 2010 land disputes tribunal matter. The court framed two issues: whether the judgment was regularly obtained, and whether leave to defend should be granted. Relying on Janes Kanyiita Nderitu, Shah v Mbogo and Patel v EA Cargo Handling Services, the court held that where non-service is proved an ex parte judgment must be set aside unconditionally, but here service was established, so the judgment was regular. On the discretionary question, the court found the only reason offered for default was non-service, which failed; there was inordinate delay, eviction orders having issued on July 2, 2022, and setting aside would prejudice the plaintiff's enjoyment of the judgment. The application was dismissed entirely with costs to the plaintiff/respondent.

Key legal issues

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01

Regularity of the ex parte judgment

Holding

The judgment of October 11, 2018 was regularly obtained because an affidavit of service showed the defendant was served with summons and plaint

Reasoning

The plaintiff filed an affidavit of service sworn by process server Boniface Ng'ang'a Ngaara on February 1, 2018, showing he was led to the defendant's home and served him with summons and plaint. Despite service the defendant failed to enter appearance, and a request for judgment was filed on April 24, 2018. The court therefore found the default judgment regular.

p. 5
02

Whether to exercise discretion to set aside a regular judgment

Holding

The discretion was declined: the only reason given was lack of service, which the court rejected, and there was inordinate delay and prejudice to the plaintiff

Reasoning

Applying Order 10 rule 11 and the Shah v Mbogo and Patel v EA Cargo Handling principles, the court held that a party cannot disregard court process to undo what was done regularly. The defendant gave no reason for default other than alleged non-service, and the application came about two months after eviction orders issued on July 2, 2022, with prejudice to the plaintiff's enjoyment of the judgment.

p. 5

Legal principles established

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  • Where a defendant demonstrates he was not served with summons, an ex parte judgment is irregular and must be set aside unconditionally with leave to defend
  • Even where a regular judgment was obtained after due service, the court may set it aside for sufficient cause upon demonstration of a defence on merits, on such terms as are just

Court orders

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  1. 1.The notice of motion application dated September 8, 2022 is dismissed entirely
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 15(1)
  • Civil Procedure RulesOrder 10 rule 11

Cases cited (6)

  • Baraka Apparel EPZ (K) Ltd v Nrose Mbula Ojwang t/a Faida 2002 Caterers
    Nairobi Court of Appeal Civil Application No 280 of 2005

    A party should not be condemned unheard; court may revoke coercive power obtained by failure to follow procedure

  • Janes Kanyiita Nderitu & another v Marius Phillotas Chikas & another
    [2016]

    Distinction between regular and irregular default judgments and criteria for setting aside

  • Shah v Mbogo
    [1967] EA 166

    Guiding principles on discretion to set aside ex parte judgment

  • Patel v E.A Cargo Handling Services Ltd
    [1974] EA 75

    Court's main concern is to do justice; regular judgment set aside only if defence on merits raises a triable issue

  • John Muthee Ngunjiri v Ali Ibrahim
    [2021] eKLR

    Application of Patel principles on defence on merits

  • Pithon Waweru Maina v Thuka Mugiria
    [1983] eKLR

    Order 10 rule 11 discretion to set aside or vary judgment on just terms

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 10 rule 11 of the Civil Procedure Rules

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, "Kiarie Mugo Michael v Moses Gitau Mwangi", Case Analysis (2023). Environment & Land Case 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15739/eng@2023-02-23

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