Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2024] KEELC 3791 (KLR)

Murithi v Muketha & 2 others (Environment and Land Appeal E068 of 2022) [2024] KEELC 3791 (KLR)

Environment and Land Court (not expressly stated in the judgment text)
8 May 2024
2,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The suit originated in a plaint dated 18.2.2019 in which the 1st and 2nd respondents sued the appellant and the 3rd respondent for breach of trust over L.R No. Timau/Timau Block 7 Nkando/621, seeking a declaration of trust, subdivision into four equal shares, vacant possession and a permanent injunction. The 3rd respondent admitted the claim; an application for judgment on admission was declined, and after hearing ex parte proceedings against the appellant, judgment was entered for the 1st and 2nd respondents on 8.8.2019. The appellant's application of 31.1.2022 to stay execution and set aside the ex parte judgment was dismissed by a ruling dated 27.10.2022, prompting this appeal. The single issue before the court was whether the trial court exercised its discretion judiciously in refusing to set aside or stay the decree. The court found service was proved by the unchallenged affidavit of the process server despite his death, but held that the appellant had raised valid, undisputed triable issues by affidavit and documentary evidence without needing a draft defence, and that no prejudice to the respondents outweighed the injustice of condemning her unheard. Finding that the trial court failed to consider the established principles governing setting aside judgments, the court allowed the appeal and awarded costs of the appeal to the appellant.

Key legal issues

#
01

Whether service of court process on the appellant was proved despite the process server's death

Holding

Service was proved; the unchallenged affidavit evidence of the process server was sufficient and there was no evidence the affidavits of service were false or misleading.

Reasoning

The process server's affidavit evidence remained on record before his death and was never contradicted by rival affidavits. The appellant did not deny being a sister to the person who guided the process server, nor that she was absent from home on the stated dates. In the court's view there was no contrary evidence rendering the affidavits of service false, misleading or unbelievable.

p. 4
02

Whether a draft defence is mandatory to demonstrate a triable issue on an application to set aside ex parte judgment

Holding

No; a party has several options to demonstrate triable issues, including by affidavit and documentary evidence, and the appellant raised valid, undisputed grounds to defend the suit.

Reasoning

The appellant raised undisputed issues on the source, circumstances, nature of occupation and justification of her entitlement to the suit land. None of the respondents disputed paragraphs 2-6 of her supporting affidavit and annexures. The court held the law and practice allow triable issues to be shown otherwise than through a draft statement of defence.

p. 4
03

Whether the trial court's discretion in refusing to set aside the judgment and decree was judiciously exercised

Holding

It was not; the trial court failed to consider the established factors - reason for non-attendance, delay, triable issues, prejudice and the interests of justice - and the appeal was allowed.

Reasoning

Applying Mbogo v Shah, Patel v E.A. Cargo Handling, Shanzu Investment, Five Forty Aviation and James Kanyita Nderitu, the court found no evidence of prejudice to the respondents comparable to the appellant's prejudice in being condemned unheard, and no negligence or obstruction by the appellant. The trial court failed to consider the relevant principles and the appeal succeeded.

p. 4

Legal principles established

#
  • An appellate court of the first instance must reappraise the lower court record and reach its own independent findings on fact and law.
  • An appellate court will not interfere with a trial court's exercise of discretion unless the court misdirected itself or was manifestly wrong, resulting in mis-justice.
  • A triable issue need not succeed; it need only disclose a defence fit for trial, and there is no legal bar to raising triable issues by affidavit.

Court orders

#
  1. 1.The appeal is allowed with merits
  2. 2.Costs of the appeal to the appellant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 5 Rule 16

Cases cited (14)

  • David Oloo Onyango vs AG
    (1987) eKLR
  • Kiai Mbaki & others vs Gichuhi Macharia & another
    (2005) eKLR
  • Paul Odidi vs Abdul Hakim Abeid & 2 others
    (2021) eKLR
  • Xplico Insurance Co. vs Purity Wawira Daviest
    (2021) eKLR
  • Equatorial Commercial Bank Ltd vs Engineering Works Ltd & others
    (2014) eKLR
  • Gitobu Imanyara & others vs A.G. & others
    (2013) eKLR
  • Mbogo & another vs Shah
    (1968) E. A
  • Patel vs E.A Cargo Handling Services Ltd
    (1974) E. A 75
  • Shanzu Investment Ltd vs Commissioner of Land
    (1993) eKLR
  • Five Forty Aviation Ltd vs Tradewinds Aviation Service Ltd
    (2015) eKLR
  • James Kanyita Nderitu & another vs. Marios Philotas Ghikas & another
    (2016) eKLR
  • Sangram Singh vs Election Tribunal Koteh A/R
    (1955) SC 664 at 711
  • John Kiboch vs National Media
    (2015) eKLR
  • Henry Orina Okao vs Timothy Ogucha Omato
    (2014) eKLR
On appeal from
trial court (magistrates' court, not expressly named)
not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's ruling of 27.10.2022 (statutory provision not expressly cited)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Murithi v Muketha & 2 others (Environment and Land Appeal E068 of 2022) [2024] KEELC 3791 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3791/eng@2024-05-08

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