ISAAC GATHUNGU WANJOHI v MOSES KIRUTI LEMPASO & 2 others
The bottom line
#A Kenyan court refused to undo a land judgment because the defendants ignored the case for years and hid information from the court.
What this practically means
#Executive summary
#Key legal issues
#Service of summons
The defendants were duly served on 22/5/2017 per the affidavit of service of George Okwemba; the third defendant personally received process on behalf of himself and his parents
The court found the affidavit of service elaborate and credible, recording that the first defendant threatened the process server with a club and spear and the third defendant calmed him down. A bare denial of service was insufficient against such evidence. The defendants' general violence, including tearing a decree and assaulting the plaintiff's workers, was uncontroverted.
Whether the draft defence raises triable issues
The draft defence is not good and bonafide; it raises no triable issues
The suit sought an injunction restraining the defendants from entering LR Kajiado/Kitengela/27302, yet the defence nowhere averred ownership of that land or how it was acquired, instead alleging allocation of LR Mavoko Municipality Block 45/59 without disclosing any nexus to the suit land.
Concealment of material facts (ELC 579 of 2017)
The defendants equally concealed the progress and outcome of ELC 579 of 2017, and that non-disclosure was fatal to the motion
Although the plaintiff had not disclosed the existence of ELC 579/2017, the defendants themselves failed to disclose the status or outcome of that suit over the same land. The court needed to know whether the decisions conflicted; failure to make those disclosures risked contradictory orders and sank the entire application.
Prejudice and delay
The plaintiff would suffer great prejudice if the suit were revived, and the defendants' delay of five and a half years in moving the court was inordinate
The suit, filed 9/5/2017, was nearly seven years old. The defendants, having been served in 2017 in the presence of police officers, resorted to violence rather than engage with the process and were highly recalcitrant. Land cases must be determined expeditiously under Section 3(1) of the Environment and Land Court Act; reviving the suit would reward deliberate delay.
Legal principles established
#- A party who applies to set aside an ex parte judgment must make full and frank disclosure, including of related litigation and its outcome; non-disclosure is fatal to the application
- A plain denial of service is insufficient where there is elaborate evidence, such as an affidavit of service, that the party was served
- Land cases should be determined expeditiously, and compliant parties should not suffer prejudice from recalcitrant litigants
Court orders
#- 1.Dismissal of the notice of motion dated 8/11/2022 with costs to the plaintiff
- Jurisdiction invoked
- Orders 17 Rule 3, 10 Rule 3 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kibor v Jepchirchir; Jepchirchir & another (Interested Parties)[2023] KEELC 20988 (KLR)19 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "ISAAC GATHUNGU WANJOHI v MOSES KIRUTI LEMPASO & 2 others", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3953/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.