Scott & another v Karanja & 4 others (Environment & Land Case 003 of 2024) (Environment and Land) [2024] KEELC 7361 (KLR)
The bottom line
#The Environment and Land Court refused to set aside an ex-parte land judgment because emails proved the defendants knew about the case all along.
What this practically means
#Executive summary
#Key legal issues
#Whether proper service was effected on the 2nd to 5th Applicants
Service was properly effected through substituted service in the Daily Nation and through email addresses, WhatsApp and last known addresses, and the 2nd Applicant's email confirmed knowledge of the suit
The court traced the record showing multiple orders for substituted service via the Daily Nation and, from 26th March 2019, service by email, WhatsApp and last known addresses, supported by an Affidavit of Service sworn 27th June 2019. The decisive factor was an email dated 4th December 2018 from the 2nd Applicant's own email address (madach8@yahoo.com), the very address to which service had been effected, confirming knowledge of the pending court proceedings.
Whether the ex-parte judgment of 28th July, 2023 should be set aside
The judgment was not set aside; the applicants' explanation for non-appearance was not plausible given their confirmed knowledge of the suit
Applying Order 12 Rule 7 and the principles in Shah v Mbogo and Mbogo v Shah, the court held that setting aside is discretionary and is not designed to assist a party who deliberately sought to evade or obstruct the cause of justice. Since service was properly effected and the applicants knew of the suit, the explanation of ignorance was rejected and the application dismissed.
Legal principles established
#- Setting aside a judgment is a matter of judicial discretion exercised to do justice between the parties
- The discretion to set aside an ex-parte judgment is not available to a party who deliberately obstructed or evaded service
- Not all unopposed applications are to be allowed automatically; the court must still interrogate the application
Court orders
#- 1.The Notice of Motion Application dated 23rd April, 2024 is dismissed with costs
- Jurisdiction invoked
- Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Articles 20, 25, 48, 50, 159 and 259 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Scott & another v Karanja & 4 others (Environment & Land Case 003 of 2024) (Environment and Land) [2024] KEELC 7361 (KLR)", Case Analysis (2024). Environment & Land Case 003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7361/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.