Mcharo v Kisomba (Environment & Land Case E010 of 2023) (Environment and Land) [2024] KEELC 414 (KLR)
The bottom line
#A Kenyan land court refused to throw out a land dispute but gave the defendant a late chance to defend himself, with each side paying its own costs.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons and pleadings upon the Defendant was proper
Service effected through the Defendant's caretaker was proper; the Defendant failed to demonstrate the process server's return was incorrect, and cross-examination of the process server was unnecessary
The process server's affidavit detailed the farm, the caretaker's name and the arrangement to leave documents. The Defendant, who admitted Mwasi worked as caretaker at his farm, failed to demonstrate he did not authorise service, that he was in Tanzania, or that Mwasi was off duty on the material date. On a balance of probability the court concluded service complied with the law.
Whether the suit should be struck out for expiry of summons or as an abuse of process
The prayer to strike out was refused; no substantial reason was shown and striking out jurisdiction must be exercised sparingly
The Defendant relied on the prior withdrawn Wundanyi suit and alleged expiry of summons. The court held these grounds weak and frivolous, citing the principle that a party should not be deprived of a proper trial unless the matter is plain and obvious, and that a suit showing even a semblance of a cause of action should be allowed to go to trial.
Whether the Defendant should be allowed to defend the suit out of time
In the interest of justice, and because land matters are emotive, the Defendant was granted 14 days leave to file and serve a defence out of time
Although the application largely lacked merit on the service question, the court noted the Plaintiff himself encouraged that the matter be heard on merit. Recognising the emotive nature of land disputes and natural justice, the court permitted the Defendant to file a defence out of time under Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010.
Legal principles established
#- Jurisdiction to strike out a suit must be exercised sparingly and only in plain and obvious cases
- Where a party questions proper service but fails to demonstrate the return of service is incorrect, the presumption of service on the process server's report prevails
- Costs follow the event under Section 27(1) of the Civil Procedure Act, but are at the discretion of the court
Court orders
#- 1.The Notice of Motion application dated 7th September, 2023 be allowed partially only to the extent that the Hearing scheduled on 20th November, 2023 or any other date be arrested pending hearing and determination of the Application
- 2.Court declines to summon the Court Process Server who allegedly effected service of the Summons to Enter Appearance and the Plaintiff's pleadings for cross-examination
- 3.Court declines to strike out the Plaintiff's suit with costs to the Defendant/Applicant
- 4.The Defendant granted 14 days leave to file and serve Defence out of time and to comply with Orders 6, 7 and 11 of the Civil Procedure Rules, 2010
- 5.The Plaintiff granted leave of 14 days to file and serve Replies to the filed Defence and any other documents and/or statements under Order 11 of the Civil Procedure Rules, 2010
- 6.The matter to be heard and disposed of within the next 180 days from delivery of the Ruling, with mention on 14th March, 2024 for Pre Trial Conference under Order 11 and taking a hearing date
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution (transferred from Mombasa ELC to Voi ELC); application brought under Articles 25(c) and 50(1) of the Constitution, Order 5 rules 1 and 16, Order 51 rules 1 and 3 of the Civil Procedure Rules 2010 and Sections 1A and 3A of the Civil Procedure Act Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mcharo v Kisomba (Environment & Land Case E010 of 2023) (Environment and Land) [2024] KEELC 414 (KLR)", Case Analysis (2024). Environment & Land Case E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/414/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.