Murithi v Muketha & 2 others (Environment and Land Appeal E068 of 2022) [2024] KEELC 3791 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether service of court process on the appellant was proved despite the process server's death
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.
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.
Whether a draft defence is mandatory to demonstrate a triable issue on an application to set aside ex parte judgment
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.
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.
Whether the trial court's discretion in refusing to set aside the judgment and decree was judiciously exercised
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.
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.
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.The appeal is allowed with merits
- 2.Costs of the appeal to the appellant
- 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.