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ELCDismissedEnvironment & Land Case 53 of 2017· [2023] KEELC 16733 (KLR)

Renet Runji Njeru v Justus W Njuguna; Julius Kiema Macharia (Objector)

Environment and Land Court
29 March 2023
1,415 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 objector, Julius Kiema Macharia, moved the Environment and Land Court at Thika by Notice of Motion dated 3 October 2022 seeking to set aside the proceedings, judgment, consequential decrees and notice of eviction in ELC 53 of 2017, an order that pleadings be served on him, and leave to be enjoined as an interested party. He claimed he purchased the suit land from the defendant in 2010 for Kshs 2M, paid a further Kshs 1M in 2014, and had been in occupation and possession since, only learning of the suit when served with an eviction notice on 19 September 2022. The plaintiff, Renet Runji Njeru, who obtained judgment on 15 June 2020, opposed, asserting service by advertisement, on the premises and on the objector as the defendant's caretaker, and disputing the purchase, noting the agreement referenced plots other than the suit land. The court framed one issue: whether the application was merited. It held that the setting-aside discretion under Order 12 Rule 7 and Order 51 Rule 15 is judicious, per Shah v Mbogo; that the defendant was duly served and elected not to defend; that the objector, never being a party, was owed no duty of service; and that his purchase claim lies against the defendant, not the plaintiff. A valid judgment cannot be defeated by an untested claim, and Order 22 Rule 51 was inapplicable. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the objector, a non-party in occupation claiming purchase of the suit land, could have the ex parte judgment set aside

Holding

The application failed; the objector was never a party, the defendant was duly served, and the objector's claim lies against the defendant, not the plaintiff

Reasoning

The court held that setting aside powers under Order 12 Rule 7 and Order 51 Rule 15 are discretionary and exercised judiciously per Shah v Mbogo. The defendant was duly served and elected not to defend. The objector, not being a party, was owed no duty of service by the plaintiff. His purchase claim against the defendant cannot defeat the plaintiff's valid judgment, and Order 22 Rule 51 on attachment was inapplicable.

p. 3

Legal principles established

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  • The court's discretion to set aside ex parte judgments must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • Where proper service was not effected on a defendant, judgment may be set aside as a matter of right

Court orders

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  1. 1.The Objector's Notice of Motion dated 3/10/2022 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 22 Rule 5(1)
  • Civil Procedure RulesOrder 22 Rule 51
  • Civil Procedure RulesOrder 51 Rule 15
  • Land Registration ActSection 26

Cases cited (3)

  • Tawakal Airbus Limited v Irene Muthoni Njirati & anor
    [2020] eKLR

    Principles for consideration in objection proceedings under Order 22 Rule 5(1)

  • Shah vs Mbogo and another
    [1967] EA 116

    Discretion to set aside ex parte proceedings to avoid injustice, not to assist deliberate obstruction

  • Pithon Waweru Maina vs Thuka Mugiria
    [1983] eKLR

    Judgment set aside as of right where proper service was not effected on a defendant

Jurisdiction invoked
Inherent and statutory powers under Order 10 Rule 11, Order 12 Rule 7 and Order 51 Rule 15 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, "Renet Runji Njeru v Justus W Njuguna; Julius Kiema Macharia (Objector)", Case Analysis (2023). Environment & Land Case 53 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16733/eng@2023-03-29

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