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ELCDismissed· [2024] KEELC 3953 (KLR)

ISAAC GATHUNGU WANJOHI v MOSES KIRUTI LEMPASO & 2 others

Environment and Land Court
30 April 2024
1,331 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines a notice of motion dated 8/11/2022 by the defendants seeking to set aside an ex parte judgment, proceedings, decree and execution, and for leave to file a defence out of time in a land dispute over LR Kajiado/Kitengela/27302. The defendants asserted they were never served, that the plaintiff failed to disclose the existence of a related suit (ELC 579 of 2017), that the plaintiff was never in possession, and that no notice of entry of judgment was served. The plaintiff opposed, relying on an elaborate affidavit of service sworn by process server George Okwemba showing service on 22/5/2017 in the presence of police officers, and deposing to the defendants' violence, including tearing a court decree and assaulting his workers. The court found service duly effected, held the draft defence raised no triable issues since it did not claim ownership of the suit land, and found the defendants had themselves concealed the progress and outcome of ELC 579 of 2017, which was fatal to the motion. The court further found the plaintiff would suffer great prejudice from revival of a nearly seven-year-old suit and that the defendants' delay of five and a half years was inordinate. While agreeing that the plaintiff ought to have proved service of notice of entry of judgment under the proviso to Order 22 Rule 6, the court nonetheless dismissed the motion with costs to the plaintiff.

Key legal issues

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01

Service of summons

Holding

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

Reasoning

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.

p. 2
02

Whether the draft defence raises triable issues

Holding

The draft defence is not good and bonafide; it raises no triable issues

Reasoning

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.

p. 3
03

Concealment of material facts (ELC 579 of 2017)

Holding

The defendants equally concealed the progress and outcome of ELC 579 of 2017, and that non-disclosure was fatal to the motion

Reasoning

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.

p. 3
04

Prejudice and delay

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated 8/11/2022 with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 3
  • Civil Procedure RulesOrder 10 Rule 3
  • Civil Procedure RulesOrder 9 Rule 7
  • Civil Procedure RulesOrder 22 Rule 6 (proviso)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 95
  • Constitution of KenyaArticle 159
  • Environment and Land Court ActSection 3(1)
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.