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ELCPartially Allowed· [2024] KEELC 5909 (KLR)

Ng’ang’a v Katana (Enviromental and Land Originating Summons 69 of 2019) [2024] KEELC 5909 (KLR)

Environment and Land Court
18 September 2024
EME. K. Makori
2,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (E. K. Makori, J) determined a Notice of Motion dated 14th December 2023, as amended, by which the registered owner of Kilifi/Mtwapa/439 sought to set aside an ex parte judgment of 8th May 2023 (Odeny J.Dr.) granting the Respondent adverse possession over the 4.9 Ha parcel, together with consequential orders and a hearing de novo. The Applicant said she was never personally served and only learned of the suit when strangers disturbed the property under a court order; the property had since been subdivided into sixteen titles in the hands of third parties. The Respondent countered that the process server, Shem. O. Abudho, could not trace her, justifying substituted service in the Daily Nation and Standard newspapers, that service was never impeached, and that execution had concluded. The court framed two issues: whether to set aside the ex parte judgment, and costs. Relying on the James Kanyita Nderitu line of authority distinguishing regular from irregular judgments, the court held that service was proper and the judgment regular, rejecting the Applicant's request to cross-examine the process server later. However, it found the roughly seven-month delay in applying not inordinate, given service was by advertisement, and held that the Applicant, as registered owner, had a right to defend and had raised triable issues. The court allowed the application, set aside the judgment, permitted the Applicant to defend, preserved the status quo of the subsisting subdivisions pending hearing, and awarded costs in the cause.

Key legal issues

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01

Whether service of summons was proper so as to render the ex parte judgment regular

Holding

The court found service by substituted advertisement proper; the Applicant failed to impeach the process server's affidavit of service when she had the chance, so the judgment stands regular

Reasoning

The process server deposed that physical efforts to serve failed because the Applicant was unknown and did not reside in the vicinity, as confirmed through the Chief's office and a village elder, prompting substituted service in the Daily Nation and the Standard. The Applicant's offer to cross-examine the process server at a future date was rejected as she should have challenged the service at that hearing.

p. 4
02

Whether the regular judgment should nonetheless be set aside

Holding

Yes. Although the judgment was held regular, the court exercised its discretion to set it aside because the delay of about seven months was not inordinate and the Applicant raised a triable defence as registered owner

Reasoning

The court distinguished the principles for regular and irregular judgments, noting the Applicant's cited authorities on regular judgments afforded the court discretion. Judgment was entered on 8th May 2023 and the application filed on 14th December 2023; since service was by newspaper advertisement which one may not see, the delay was not inordinate. The defence raised the Applicant's registered ownership, a genuine dispute warranting a hearing on the merits.

p. 4

Legal principles established

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  • A judgment entered against a defendant not properly served is an irregular judgment which must be set aside ex debito justiciae as a matter of right, without inquiry into triable issues or delay
  • Failure to impeach a process server's unchallenged affidavit of service leaves the court to accept the service as proper
  • A party has a right to be heard and to defend a suit on the merits notwithstanding a regular judgment, where the setting-aside application is not inordinately delayed and triable issues exist

Court orders

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  1. 1.The application dated 14th December 2023 is allowed
  2. 2.The judgment dated 8th May 2023 and the consequential orders are set aside
  3. 3.The Applicant is allowed to defend the suit
  4. 4.The subject matter is to remain registered in the names of the subsisting subdivisions until the matter is heard and determined
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (8)

  • Ali Bin Khamis v Salim Khamis Korobe & 2 others
    [1956] 23 EACA 195
  • James Kanyita Nderitu v Maries Philotas Ghika & another
    [2016] eKLR
  • Mbogo & Another v Shah
  • Patel v EA Cargo Handling Services Ltd
    [1975] EA 75
  • Chemwolo & Another v Kubende
    [1986] KLR 492
  • CMC Holdings v Nzioki
    [2004] 1 KLR 173
  • Onyango Oloo v Attorney General
    [1986 – 1989] EA 456
  • Sangram Singh v Election Tribunal, Kotch
    AIR 1955 SC 664
Jurisdiction invoked
Inherent jurisdiction to set aside ex parte/irregular judgments under Order 10 Rule 11 of the Civil Procedure Rules (as submitted by the Applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ng’ang’a v Katana (Enviromental and Land Originating Summons 69 of 2019) [2024] KEELC 5909 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5909/eng@2024-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.