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ELCDismissedAppeal against Kangundo SPMC ELC No. 45 of 2019· [2024] KEELC 1303 (KLR)

Peter Gitari Weru v William Mwangangi, Joan Wairimu Musyoki & Elijah Mutua (Suing as registered officials of Jesus Manifestation Church)

Environment and Land Court
11 March 2024
COChristine Ochieng
2,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to undo an ex parte eviction judgment because the man's lawyer was properly served and the property had already changed hands.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. E. Agade, Senior Resident Magistrate, in Kangundo SPMC ELC No. 45 of 2019, in which the respondents, officials of Jesus Manifestation Church, obtained an ex parte judgment for eviction and a permanent injunction against the appellant, Peter Gitari Weru, but were ordered to refund him the purchase price of Kshs. 1,200,000 with interest under the sale agreement before evicting him. The decree was executed on 28th February 2020, when the appellant was evicted. The appellant, whose counsel was recorded as served with pre-trial and hearing notices, applied to set aside the ex parte judgment; that application was dismissed on 25th August 2020. On appeal, argued by written submissions, the sole issue was whether the ex parte judgment of 1st August 2019 should be set aside. Applying Selle v Associated Motor Boat Co, Onjula Enterprises v Sumaria, Wachira Karani v Bildad Wachira and the Indian Supreme Court's Parimal v Veena on 'sufficient cause', Christine Ochieng, J, held that the appellant's erstwhile counsel was properly served, that the defence's triable issues were taken into account by the trial court in ordering the refund, and that the appellant moved to set aside the judgment only after the decree had been executed. The appellant was directed to pursue the unpaid interest under the judgment. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Whether the ex parte judgment should be set aside for want of service and the appellant's alleged condemnation unheard

Holding

The appeal fails because service on the appellant's counsel was proved and no sufficient cause was shown to set aside the judgment.

Reasoning

The court found that the appellant's erstwhile advocates were served with pre-trial and hearing notices as evidenced by affidavits of service, and failed to attend court, culminating in the ex parte hearing. Setting aside is discretionary and requires sufficient cause. The decree had been executed (the appellant evicted) before the setting-aside application was filed, and the judgment itself protected the appellant by directing a refund of the purchase price plus interest. The appellant's remedy lies in enforcing the refund of interest, not in setting aside the judgment.

p. 5

Legal principles established

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  • A regular ex parte judgment will not be set aside unless the applicant demonstrates sufficient cause, and setting aside after the decree has been executed is not warranted.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 11

Cases cited (8)

  • Selle and Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Doa Doa Doa Tented Camps & Lodges Limited v Jubilee Insurance Company of Kenya Limited
    Civil Suit No. 14 of 2020
  • Republic v Speaker of Nairobi City County Assembly & Another
    (2017) eKLR
  • Onjula Enterprises Ltd v. Sumaria
    [1986] KLR 651
  • London Association for the Protection of Trade & Another v. Greenlands Limited
    [1916] 2 AC 15
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Patel v East Africa Cargo Handling Services
  • Parimal v Veena
On appeal from
Senior Resident Magistrate's Court, Kangundo
SPMC ELC No. 45 of 2019
Jurisdiction invoked
First appeal from the Senior Resident Magistrate's Court under the Civil Procedure Act and 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, "Peter Gitari Weru v William Mwangangi, Joan Wairimu Musyoki & Elijah Mutua (Suing as registered officials of Jesus Manifestation Church)", Case Analysis (2024). Appeal against Kangundo SPMC ELC No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1303/eng@2024-03-11

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