Remku Limited v Onyango & Onyango (Sued as legal representative of the Estate of Japheth Omondi Owino - Deceased) & 2 others
The bottom line
#A Kenyan company lost land it bought from a deceased person's family because it couldn't prove a valid purchase or defend the case in time.
What this practically means
#Executive summary
#Key legal issues
#Whether the lower court properly exercised its discretion under Order 10 Rule 11 in dismissing the application to set aside the ex-parte judgment
The lower court applied the correct principles; the Appellant failed to show good excuse for default or a prima facie defence, so the discretion was properly exercised and the appeal fails
The court reviewed the settled principles on setting aside ex-parte judgments: the discretion must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs justice. The Appellant's advocate's affidavit did not explain how the Appellant learnt of the suit, nor how it acquired the property, and no sale agreement, payment evidence, consent or transfer was exhibited. The draft defence did not answer the claim that the transfer occurred before a grant of letters of administration.
Whether the Appellant was properly served by substituted service
Service was effected pursuant to leave granted by the lower court, and since the Appellant never sought to set aside that leave, the mode of service cannot be challenged on appeal
The Appellant complained that substituted service by newspaper advertisement was improper given it was a known Kenyan company. However, its application before the lower court did not include a prayer for setting aside the leave for substituted service. The court held that service effected pursuant to unchallenged leave cannot be interrogated on appeal.
Whether the Appellant had a prima facie defence raising triable issues
No; the Appellant produced no evidence of how it acquired the suit property and its draft defence did not answer the claim that the transfer was an intermeddling with a deceased's estate before a grant
The register showed an entry that the registered owner was deceased, which the Appellant admitted knowing. Without evidence of acquisition from the legally appointed legal representative - no sale agreement, payment proof, Land Control Board consent or transfer was exhibited - the Appellant had no answer to the claim that the transaction was null and void under the Law of Succession Act.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, based on misdirection or failure to consider relevant matters
- A party challenging substituted service must first challenge the leave granting substituted service; the mode of service cannot be interrogated on appeal if the leave was not challenged below
- Setting aside an ex-parte judgment requires both a good excuse for default and a defence raising triable issues
Court orders
#- 1.The appeal filed on May 10, 2022 is dismissed with costs to the 1st Respondents
- On appeal from
- Chief Magistrate's Court at Kisumu
- CMELC No. E31 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court ruling under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Remku Limited v Onyango & Onyango (Sued as legal representative of the Estate of Japheth Omondi Owino - Deceased) & 2 others", Case Analysis (2023). Environment and Land Appeal E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15753/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.