Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 88 of 2019· [2023] KEELC 15858 (KLR)

Sanga (Suing in his Capacity as the Personal Representative of Sanga Mwambo Kai - Deceased) v Tebid Holdings Limited & 2 others

Environment and Land Court
3 March 2023
3,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court set aside a default land judgment because the defendant showed a real defence, even though service of court papers was technically proper.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated February 25, 2022 by the 1st Defendant, Tebid Holdings Limited, seeking stay of execution and setting aside of an ex parte judgment of December 2, 2021 entered against it in a suit concerning Plot No. Chembe/Kibabamshe/311. The 1st Defendant, through an affidavit of Luca Fanini, contended it was served by registered post at postal addresses used only at incorporation, that its Italy-based directors never received the Originating Summons, that it was condemned unheard in breach of natural justice, and that its draft replying affidavit raised triable issues, including that it was an innocent purchaser for value from Mayungu Limited without notice of defects in title and was not party to the National Land Commission proceedings. The Plaintiff maintained service complied with Order 5 Rule 3(b), relying on addresses from the Companies Registry green card, and that a title deed had already issued, overtaking the application. The court framed three issues: properness of service, regularity of the judgment, and entitlement to stay and setting aside. It found service would amount to proper service since the address was the registered one, but held that even a regular ex parte judgment may be set aside where a reasonable defence on the merits is shown. Finding triable issues in the draft defence, the court set aside the judgment of December 2, 2021 and all consequential decrees, ordered the 1st Defendant to file a defence within 14 days, and awarded thrown away costs of Kshs 60,000/- payable within 30 days, failing which the order lapses, with costs in the cause.

Key legal issues

#
01

Properness of service by registered post on the 1st Defendant's registered postal address

Holding

The court found the service would amount to proper service since the postal address was the one provided to the Companies Registry, but this did not preclude setting aside the judgment

Reasoning

The court held parties may change their particulars at the Companies Registry and a company must maintain a postal and physical address, so use of the registered address during incorporation did not invalidate service. However, citing Kingsway Tyres, even a regular judgment may be vacated on grounds other than non-service where a reasonable defence on the merits is shown.

p. 6
02

Whether the draft replying affidavit raises triable issues warranting setting aside the ex parte judgment

Holding

Yes - the draft replying affidavit showed a defence with triable issues which the court could not ignore

Reasoning

The Applicant asserted it was an innocent purchaser for value without notice of defect in Mayungu Limited's title and was neither party to nor aware of the National Land Commission proceedings, violating natural justice. The court, applying Patel v EA Cargo Handling Services and the James Kanyiita Nderitu factors, found good and substantial reasons to set aside the judgment and allow the 1st Defendant to be heard.

03

Whether stay of execution could be granted after the decree had been executed and a title issued

Holding

Stay was overtaken by events, but setting aside the judgment would nullify the title issued pursuant to the decree

Reasoning

The Plaintiff had already obtained a title deed issued only three days after a Gazette Notice calling for objections within 30 days. The court noted courts do not give orders in vain, but held that setting aside the ex parte judgment would nullify the decree that gave life to the issuance of the title and all consequential orders or actions.

p. 6

Legal principles established

#
  • Service of summons goes to the root of an ex parte judgment; where there was no proper service the court has discretion to set aside the judgment and consequential orders
  • A regular ex parte judgment may still be set aside where the defendant shows a reasonable defence on the merits, notwithstanding valid service

Court orders

#
  1. 1.The judgment delivered on December 2, 2021 and all consequential decrees thereof set aside
  2. 2.The 1st Defendant to file a defence/replying affidavit within 14 days from the date of the ruling
  3. 3.The 1st Defendant to pay thrown away costs of Kshs 60,000/- within the next 30 days, failure to which the order lapses
  4. 4.Costs in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 5 Rule 3 (b)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (9)

  • James Wanyoike & 2 Others vs CMC Motors Group Limited & 4 Others
    [2015] eKLR

    Principles and tests for setting aside ex parte judgments

  • Patel v East Africa Cargo Handling Service
    [1974] EA 76

    Defence on merits means a triable issue; court's wide discretion to do justice

  • Sebei District Administration vs Gasyali & Others
    (1968) EA 300

    Cited by counsel on setting aside ex parte judgments

  • Tree Shade Motors Ltd vs DT Dobie & Anor
    [1995-1998] 1 EA 324

    Judgment set aside if defence raises triable issue even if service valid

  • Shah v Mbogo & Another
    (1967) EA 116

    Discretion not designed to assist a party who deliberately obstructs or delays justice

  • Mbogo v Shah
    (1968) EA 93

    Approval of Harris J's statement on discretion to set aside ex parte judgments

  • James Kanyiita Nderitu & Another Versus Marios Philotas Ghikas & Another
    Civil Appeal No 6 of 2015 eKLR

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

  • Kingsway Tyres And Automart v Rafiki Entrprises Ltd
    Ca Civil Appeal No 220 Of 1995

    Regular ex parte judgment may be vacated on grounds other than non-service where reasonable defence on merits shown

  • Departed Aseans Property Custodian Board v Issa Bakuya
    Civil Appeal No 18 of 1991

    Application to set aside ex parte judgment must be justified by good or substantial reasons

Jurisdiction invoked
Inherent and discretionary powers of the Environment and Land Court under Order 10 rule 11 of the Civil Procedure Rules to set aside an ex parte judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sanga (Suing in his Capacity as the Personal Representative of Sanga Mwambo Kai - Deceased) v Tebid Holdings Limited & 2 others", Case Analysis (2023). Environment & Land Case 88 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15858/eng@2023-03-03

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