Mwashigadi v Lyatonga (Cause 222 of 2016) [2024] KEELC 4730 (KLR)
The bottom line
#A Mombasa court set aside a land judgment entered without a defence, but only after four years' delay cost the defendant Kshs. 350,000 in thrown away costs.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit for non-service of summons within one year
Suit did not abate; the affidavit of service showed service within the 12-month validity period
Under Order 5 Rule 1(1) (now Order 5 Rule 2) of the Civil Procedure Rules, summons are valid for twelve months. The process server's affidavit of service sworn on 17th May 2017 averred service on 26th January 2017, less than a month after the summons issued on 18th August 2016, hence well within the validity period. The Leonard Njogu case on expired summons was distinguished as obiter.
Setting aside ex parte judgment and conditional leave to defend
Judgment set aside, but on conditions including thrown away costs, because the defendant was indolent yet has a constitutional right to be heard and the defence raises triable issues
Although service was proper and the application was filed 4 years and 2 months after judgment - an inordinate and unexplained delay - the court noted the defendant's constitutional right to be heard, that the suit involves land ownership, and that a triable defence existed. Guided by Shah v Mbogo, Patel v East Africa Cargo Handling, Sebei District Administration and Rayat Trading, the court set aside the judgment conditionally rather than unconditionally.
Costs of the application
No orders as to costs
Costs are discretionary under Section 27 of the Civil Procedure Act and ordinarily follow the event, but the court, weighing the circumstances - including that the plaintiff never responded to the application and that the setting aside was conditional - exercised its discretion to make no order as to costs.
Legal principles established
#- Summons are valid for twelve months from issue and may be extended by the court where it is just to do so
- The discretion to set aside ex parte judgment is unfettered but must be exercised judiciously to further the interests of justice
- A key factor in setting aside an ex parte judgment is whether the defendant has a triable defence
- Costs follow the event unless the court, for good reason, orders otherwise under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion dated 6th July 2022 found to have merit and partially admitted in regard to the setting aside of the judgment entered on 21st September 2018, the decree and all subsequent orders thereof
- 2.The interlocutory judgment entered on 21st September 2018 set aside on conditions: Defendant granted leave to comply with Orders 6, 7 and 11 of the Civil Procedure Rules by filing defence and/or counterclaim, statements and documents within 14 days
- 3.Defendant to pay the Plaintiff Kshs. 350,000/- as thrown away costs within 14 days of the ruling
- 4.Plaintiff granted corresponding 7 days leave thereafter to file Replies to Defence and/or Defence to Counter-Claim and other relevant documents
- 5.In default of compliance, the order vacating the interlocutory judgment shall automatically lapse without further reference to the court
- 6.Matter set down for case management pre-trial conference on priority basis on 29th July 2024
- 7.Matter to be heard on 16th September 2024, judgment on 9th December 2024; no adjournments to be entertained
- 8.No orders as to the costs of the Notice of Motion dated 6th July 2022
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 12 Rule 7, Order 45 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwashigadi v Lyatonga (Cause 222 of 2016) [2024] KEELC 4730 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4730/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.