Awino v Awino & another (Environment & Land Case 34 of 2017) [2024] KEELC 5537 (KLR)
The bottom line
#The court refused to set aside a land judgment because affidavits proved the defendant was served and simply chose not to attend court.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was served and accorded an opportunity to be heard
The court found that service was proved by affidavits of service sworn on 30th November 2017 and 15th November 2017, which were considered in the earlier judgment; the applicant was aware of the suit and chose not to attend.
The court noted that the affidavits of service had been considered at paragraph 5 of the judgment. Article 48, 50(1) and 159(2)(b) and (e) guarantee a hearing, but the applicant was accorded that opportunity and opted not to participate. Thus no violation of natural justice arose and the basis for setting aside the ex-parte judgment failed.
Whether the judgment should be set aside and the case reopened
No - the judgment is legal and regular and the applicant presented no solid reasons to disturb it.
The court weighed the applicant's claim of non-service against the proved service and the respondent's evidence that execution took place, the judgment was fully settled and the estate administered under a confirmed grant in Homa Bay SRM's Court Succession Cause No. 223 of 2014. The draft defence was a mere denial and litigation must come to an end.
Legal principles established
#- A party to a case must be made aware of its existence to enable that party to either appear or not appear in court
- The burden of proof remains on the plaintiff on a balance of probabilities even in a formal proof hearing
Court orders
#- 1.The application dated 5th March 2024 is dismissed with costs to the respondent/plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over the suit; application under the Civil Procedure Rules 2010 (Order 5 Rules 6 and 15, Order 8 Rule 9B cited) for setting aside judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awino v Awino & another (Environment & Land Case 34 of 2017) [2024] KEELC 5537 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5537/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.