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ELCPartially AllowedNot stated in judgment· [2024] KEELC 3788 (KLR)

Kimani v Wanjiru & 2 others (Environment and Land Case Civil Suit 559 of 2017) [2024] KEELC 3788 (KLR)

Environment and Land Court
2 May 2024
739 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 set aside a 2020 land judgment so an unrepresented homeowner could finally present her side of the case.

What this practically means

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Executive summary

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The 1st Defendant/Applicant moved the court by an application dated 2nd February 2021 seeking to set aside a judgment entered on 19th November 2020 by Hon Justice L. Komingoi, in a suit concerning the leasehold interest in house number 84-3 D at Umoja II Estate, Nairobi. She deponed that she was the registered owner of the suit property and that judgment was entered without her participation, as she was never served with pleadings or informed of hearing dates. The Plaintiff/1st Respondent opposed, asserting that the 1st Defendant was duly served but deliberately failed to enter appearance or file a defence, and that the application was made in bad faith. The court framed a single issue: whether the application to set aside was warranted. Relying on James Kanyiita Nderitu and Shah v Mbogo, the court reaffirmed that the discretion to set aside an ex parte judgment must be exercised judiciously to avoid injustice, not to reward obstruction. On service, the record showed the process server served the Applicant at Muthurwa market, and she did not challenge that testimony, so service was probably effected. However, the Applicant is unrepresented and, applying Article 10 of the Constitution, the court found it just to give both parties an opportunity to be heard. The application was allowed: the judgment of 19th November 2020 was set aside, the 1st Defendant to pay thrown away costs of Kshs 10,000 within 30 days, and all Defendants to comply with a case timetable the court will set. Judgment by Judy Omange, Judge, delivered via Microsoft Teams on 2nd May 2024.

Key legal issues

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01

Whether the application to set aside the ex parte judgment should be allowed

Holding

Allowed; the judgment dated 19th November 2020 was set aside on conditions

Reasoning

The court considered the service evidence: the process server deposed to serving the 1st Defendant at Muthurwa market and she did not challenge that testimony, so service was probably effected. Nonetheless, the Applicant is unrepresented, and the court invoked Article 10 values, finding it just that both parties be heard. Setting aside was conditioned on payment of thrown away costs and compliance with a case timetable to protect the Plaintiff's interest in a final determination.

p. 2
02

Whether the Applicant was served with summons and pleadings

Holding

The court found service was probably effected, as the Applicant did not challenge the process server's testimony

Reasoning

The court record showed that one Peter Keli deponed that he served the 1st Defendant at Muthurwa market with summons and other documents, and that she said she was following up the issue with the Governor's Office. Since the Applicant did not challenge this testimony, the court found it probably true that she was served but believed she could resolve the matter out of court.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte judgment must be exercised judiciously, to avoid injustice from accident or excusable mistake, not to assist a party who deliberately obstructs justice
  • An unrepresented litigant is at a disadvantage and the court should interpret the law in a manner promoting constitutional values when dealing with such a litigant

Court orders

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  1. 1.The Judgement dated 19th November, 2020 is hereby set aside
  2. 2.The 1st Defendant is to pay thrown away costs of Kshs 10,000 to the Plaintifi within 30 days
  3. 3.The Defendants are to comply with the case time table for hearing of the case which the court will set

Authorities

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Legislation

  • Constitution of KenyaArticle 10

Cases cited (2)

  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • Shah vs. Mbogo & Another
    [1967] EA 116
Jurisdiction invoked
Original civil jurisdiction over the suit; application brought under the court's discretion to set aside ex parte judgment (no statutory provision expressly cited)

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, "Kimani v Wanjiru & 2 others (Environment and Land Case Civil Suit 559 of 2017) [2024] KEELC 3788 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3788/eng@2024-05-02

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