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ELCDismissedELC Case No. 137 A of 2012 (misnoted as 237 A of 2012 in the file)· [2024] KEELC 6376 (KLR)

Murei v Chumo (Environment & Land Case 137"A" of 2012) [2024] KEELC 6376 (KLR)

Environment and Land Court
3 October 2024
JOJ. M. Onyango
1,828 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret Environment and Land Court refused to set aside a 2018 default judgment, ruling the land ownership question was already decided and the applicant waited far too long.

What this practically means

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Executive summary

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The Defendant/Applicant by notice of application dated 17th January 2024 sought to set aside a default judgment entered on 8th November 2018 and to restore the registration status of land parcel Nandi/Chemuswa/464 as at the filing of the suit. He argued that he was never served with a hearing notice, that his former advocate Mr. S.K. Kitur was ailing and died in 2020, and that he only learnt of the judgment in December 2023 when he could not trace the mislabelled court file. He further contended his title was illegally cancelled during the pendency of the suit contrary to lis pendens. The Plaintiff/Respondent opposed, asserting service was effected by the Deputy Registrar, and that the Applicant had admitted in related Kapsabet proceedings (SPM ELC No. 110 of 2016 and ELC Appeal No. 4 of 2022) that judgment had been delivered, so he came to court with unclean hands and was guilty of laches. The court framed two issues: service, and whether the default judgment should be set aside. It found the Applicant failed to prove non-service, the burden being on him, and the absence of any direction for fresh notice implied the court had been satisfied with service. On setting aside, the court held the ownership dispute was res judicata following the Kapsabet decisions, that the Applicant had been dishonest about when he learnt of the judgment, was guilty of laches, and was seeking a second bite at the cherry amounting to abuse of process. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant was served with a hearing notice

Holding

The court found service was effected; the Applicant failed to discharge the burden of proving non-service on his former advocate.

Reasoning

Order 12 Rule 2(b) requires the court to direct fresh service only if unsatisfied that notice was served. Since no fresh notice was directed, the court was satisfied service had been effected. The former advocate's death certificate, showing he died two years after the 2018 hearing, did not prove he was not served at the hearing.

p. 2
02

Whether the default judgment of 8th November 2018 ought to be set aside

Holding

The application was dismissed: ownership of the suit property had been determined in Kapsabet SPM ELC No. 110 of 2016 and affirmed in Kapsabet ELC Appeal No. 4 of 2022, rendering the matter res judicata; the Applicant was guilty of laches and abuse of process.

Reasoning

Setting aside is discretionary, weighing the nature of the action, the defence, delay and prejudice. The Applicant knew of the judgment by 2021 when he admitted it in the Kapsabet suit, yet waited until after his appeal was dismissed on 28.3.24 to file this application, showing dishonesty and lack of explanation for delay.

p. 4

Legal principles established

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  • Where the court is not satisfied that a hearing notice was served, the burden lies on the party alleging non-service to prove it; the court's failure to direct fresh service implies satisfaction that service was effected
  • Setting aside an ex parte judgment is discretionary, exercised to do justice and avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice
  • A party who was heard in related proceedings determining the same issue cannot use an application to set aside default judgment for a second bite at the cherry; that is an abuse of court process

Court orders

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  1. 1.The Defendant's application dated 17th January 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 2

Cases cited (2)

  • Patel v E.A. Cargo Handling Services Ltd
    (1975) E.A 75
  • Shah v Mbogo
    (1967) EA 116
Jurisdiction invoked
Inherent discretion of the court under Order 12 Rule 2 of the Civil Procedure Rules to set aside ex parte/default judgment

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, "Murei v Chumo (Environment & Land Case 137"A" of 2012) [2024] KEELC 6376 (KLR)", Case Analysis (2024). ELC Case No. 137 A of 2012 (misnoted as 237 A of 2012 in the file). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6376/eng@2024-10-03

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