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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (suit commenced by Originating Summons dated 26/3/2022)· [2024] KEELC 6856 (KLR)

Charles Wabula Werunga v Defendants/Respondents

Environment and Land Court
17 October 2024
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Bungoma's Environment and Land Court reinstated a land suit dismissed without the owner's knowledge, but ordered him to pay overdue costs and finish the case within six months.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th May 2024 under Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2020, the Applicant sought setting aside of ex parte orders of 5th March 2024 dismissing his suit for want of prosecution, and cross-examination of the process server, Moses Kuloba Keya, on his affidavit of service. The Applicant alleged his advocate never received the hearing notice and that he learned of the dismissal only during proceedings in BGM CMCC No. 337 of 2022, the parties having been in settlement negotiations. The Respondents opposed, contending the Applicant was guilty of laches, had failed to pay thrown away costs of Ksh 10,000/- awarded when leave to amend was granted, and had not paid adjournment costs and fees; they maintained service was effected and acknowledged by signature. In an ex tempore review of the record, the court traced the Applicant's repeated defaults: an adjournment granted on payment of costs, non-attendance at mention, and eventual dismissal despite purported proof of service. The court found the Respondents' proof of service - a mere stamp of unclear purport - unconvincing, but censured the Applicant's failure to pay ordered costs. Applying Shah v Mbogo, Wachira Karani and Shadrack Arap Baiywo, and emphasising substantive justice and the right to be heard on the merits, the court allowed the application on terms: the dismissal orders of 5th March 2024 were set aside; the Applicant was to settle the costs ordered on 7th March 2023 and 1st November 2023 within seven days; the suit was to be heard and determined within six months; and costs of the application were made costs in the cause. The prayer for cross-examination of the process server was effectively not granted.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside

Holding

The dismissal was set aside because proof of service of the hearing notice was unconvincing and substantive justice required allowing the Applicant to prosecute his suit, but on strict terms

Reasoning

The court reviewed the record and noted the Applicant's poor conduct: failure to pay thrown away costs, court adjournment fees, and advocate and witness costs. Nonetheless, the stamped document proffered as proof of service was unconvincing since it was unclear what the stamp acknowledged. Balancing this against the fundamental principle of natural justice, the court set aside the dismissal on conditions including settlement of prior costs and a six-month timeline.

p. 3
02

Whether the process server should be summoned for cross-examination

Holding

The court did not grant the prayer for cross-examination; it resolved the service dispute by assessing the proof of service itself

Reasoning

While acknowledging the Applicant's allegation of no service and the presumption of service in favour of a process server, the court found the Respondents' proof of service - a stamp of unclear meaning - to be unconvincing. Rather than ordering cross-examination, the court proceeded directly to exercise its discretion on the setting aside application, granting it subject to terms.

Legal principles established

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  • The discretion to set aside ex parte decisions is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice
  • Sufficient cause for setting aside is a question of fact to be assessed in the circumstances of each case, with no universal formula
  • There is a presumption of service in favour of a process server, but where service is denied it is desirable that the process server be put in the witness box for cross-examination
  • Courts exist to serve substantive justice and parties deserve a proper opportunity to advance their cases on the merits

Court orders

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  1. 1.The orders dated 5th March 2024 dismissing the suit are set aside
  2. 2.The Applicant to settle the costs ordered on 7th March 2023 and 1st November 2023 within 7 days
  3. 3.The Applicant shall ensure the suit is heard and determined within six (6) months
  4. 4.Costs of the application shall be costs in the cause
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2020

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, "Charles Wabula Werunga v Defendants/Respondents", Case Analysis (2024). Not stated in judgment (suit commenced by Originating Summons dated 26/3/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6856/eng@2024-10-17

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