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ELCDismissedEnvironment & Land Case 39 of 1996· [2023] KEELC 18317 (KLR)

Juma & another v Alawi & 2 others

Environment and Land Court
26 June 2023
2,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a 27-year-old land case because the plaintiff missed deadlines, and declared a 2014 judgment over the property fake.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (S. M. Kibunja, J) determined a notice of motion dated 8 November 2022 by the 1st plaintiff, Juma Pamba Juma, seeking to vacate, review, discharge, vary or set aside the orders of 28 July 2022, including the order striking out the plaintiff's suit if no cause was shown. The 2nd and 3rd defendants opposed, arguing the show cause order had not been complied with, that a fake judgment could not be set aside but only declared null and void, and that the deponent of the supporting affidavit had evaded cross examination. The court framed three issues: compliance with the show cause order, the effect of the deponent's failure to attend cross examination, and the just orders. It found the show cause affidavit was filed over 90 days after the 14-day deadline with no extension sought; that the deponent's excuses (change of counsel, a swollen leg) were unsupported and designed to evade cross examination, warranting striking out the affidavit; and that the suit had abated on or about 6 May 2019 under Order 24 Rule 3(2) of the Civil Procedure Rules, one year after the substituted plaintiff Mishi Pamba Juma's death, with no substitution application filed. The court ordered that the suit abated, that it be struck out in any event, and reiterated that the purported judgment of Mukunya J of 11 February 2014 was fake, null and void, and incapable of conferring interests over Kilifi/Roka/308. No costs order was made.

Key legal issues

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01

Compliance with the show cause order of 28 July 2022

Holding

The plaintiff did not comply; the show cause affidavit was filed more than 90 days after the order, well outside the 14 days, with no extension of time sought.

Reasoning

The order of 28 July 2022 required a show cause affidavit within 14 days. The affidavit relied on was sworn on 28 October 2022 and stamped as filed on 31 October 2022, over 90 days later. No application for extension of time was made, and none of the five prayers in the notice of motion of 9 November 2022 sought extension. The suit was therefore, for all practical purposes, struck out after the 14th day.

p. 4
02

Effect of deponent's failure to attend cross examination

Holding

The supporting affidavit should be struck out, leaving the application without evidence.

Reasoning

The deponent failed to attend cross examination on two occasions, offering excuses (change of counsel, swollen leg) unsupported by any medical records. The court concluded he never intended to avail himself. Depositions of a deponent who disobeys a direction to attend cross examination are questionable and cannot found an application; striking out the affidavit safeguards the integrity of court processes.

p. 4
03

Abatement of suit on death of plaintiff

Holding

The suit abated on or about 6 May 2019 under Order 24 Rule 3(2) of the Civil Procedure Rules.

Reasoning

Mishi Pamba Juma, the substituted plaintiff, died on 6 May 2018. No application to substitute her or to extend time for substitution was filed within one year of her death or at all. The suit therefore abated on or about 6 May 2019, and the application of 9 November 2022 was filed in an abated suit.

p. 4
04

Status of the purported 2014 judgment

Holding

The purported judgment of Mukunya J of 11 February 2014 is fake, a forgery, null and void, and incapable of conferring interests over Kilifi/Roka/308.

Reasoning

The court had already declared in its ruling of 28 July 2022 that the purported judgment was fake and a forgery. A fake judgment cannot be set aside; it can only be declared null and void. The court reiterated that neither the judgment nor any purported decree emanated from the court and no person should act on it.

p. 5

Legal principles established

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  • A fake or forged judgment cannot be set aside; it can only be declared null and void.
  • Where a deponent fails to avail himself for cross examination on his affidavit, the affidavit should be struck out, leaving the application without evidential basis.
  • A plaintiff's suit abates where no application to substitute the deceased plaintiff is made within one year of death under Order 24 Rule 3(2) of the Civil Procedure Rules.

Court orders

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  1. 1.That as Mishi Pamba Juma, the plaintiff, died on the 6th May 2018, her suit against the defendants abated on or about 6th May 2019.
  2. 2.That as the plaintiff or her legal representative has not complied with the show cause order of the 28th July 2022, this suit, in case it had not abated as in (a) above, is hereby struck out.
  3. 3.That the fake judgement alleged to have been delivered by S. N. Mukunya, J, on the 11th February 2014, and any decree purported to arise therefrom, is a nullity, null and void, and incapable of conferring any interests over land parcel Kilifi/Roka/308.

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(2)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kilifi/Roka/308

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, "Juma & another v Alawi & 2 others", Case Analysis (2023). Environment & Land Case 39 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18317/eng@2023-06-26

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