[2017] KEELC 725 (KLR)
The court found that although the Defendant alleged non-service of summons, the affidavits of service indicated that service was effected on him, with his wife present, and that he declined to acknowledge service. The Defendant failed to provide an affidavit from his wife to support his claim. However, considering...
Source-derived case information.
- Citation
- [2017] KEELC 725 (KLR)
- Parties
- Plaintiff: Jenifer Akeyo Wale; Defendant: Joseph Ondiek Olweny
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 43 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- Application allowed with conditions; ex parte judgment set aside.
- Legal Topics
- Service of Process, Setting Aside Ex Parte Judgment, Affidavit of Service, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jenifer Akeyo Wale
Plaintiff
Joseph Ondiek Olweny
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the Defendant was properly served with summons to enter appearance.
- 2 Whether the Defendant provided a reasonable explanation for failing to enter appearance and defend the suit.
- 3 Whether the orders to set aside the ex parte judgment and stay execution should be granted.
Ratio Decidendi
The court found that although the Defendant alleged non-service of summons, the affidavits of service indicated that service was effected on him, with his wife present, and that he declined to acknowledge service. The Defendant failed to provide an affidavit from his wife to support his claim. However, considering the disputed facts regarding land ownership and in the interest of justice, the court exercised its discretion to set aside the ex parte judgment, allowing the Defendant an opportunity to defend the suit, subject to conditions including payment of thrown away costs. The court emphasized the importance of hearing both parties, especially where substantive rights to land are at...
Court Disposition
Application allowed with conditions; ex parte judgment set aside.
Orders
- The court's judgment of 28th April 2016 is set aside to allow the Defendant to file and serve his defence, statement, and documents within fourteen (14) days.
- The Defendant shall pay the Plaintiff thrown away costs assessed at Ksh.20,000 within fourteen (14) days.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.43 OF 2015
JENIFER AKEYO WALE.........................................PLAINTIFF
VERSUS
JOSEPH ONDIEK OLWENY..............................DEFENDANT
RULING
1. Joseph Ondiek Olweny, the Defendant, seeks vide notice of motion dated 1st September 2016, for execution of the decree of 28th April 2016 to be stayed and exparte judgment of the same date set aside. The Defendant list five grounds on the application which is also supported by his affidavit sworn on the 1st September 2016.
2. The application is opposed by Jenifer Akeyo Wale, the Plaintiff, through her replying affidavit sworn on the 16th November 2016.
3. The counsel for the defendant and plaintiff filed their written submissions dated 5th May 2017 and 9th May 2017 respectively.
4. The following are the issues for this court’s determination;
a) Whether the Defendant had been properly served with the summons to enter appearance.
b) Whether the Defendant has offered reasonable explanation as to why he failed to enter appearance, file his defence and defend the suit.
c) Whether the orders sought should be issued.
5. The court has carefully considered the grounds on the notice of motion, affidavit evidence, written submissions by both counsel and come to the following findings;
a) That though the Defendant alleges that summons to enter appearance were not served on him but to his wife who failed to hand them to him, and that he only got to know about this suit during proclamation, there is no affidavit obtained and filed by his wife to confirm that claim.
b) That the affidavit of service of summons to enter appearance sworn by David Elvis Ochieng confirms that service was effected on the Defendant who was pointed out by his wife, namely Ms Agneta Achieng. That the same process server effected another service on the Defendant, in the presence of his wife Pamela Achieng, on 30th June 2016 as per the affidavit of service sworn on the same date. That during both occasions the Defendant is indicated to have declined to sign in acknowledgment of service.
c) That the foregoing notwithstanding, the Defendant’s allegation that he is in possession of the suit land has been disputed by the Plaintiff through the replying affidavit. That further, the court has noted the copy of the land certificate for Kisumu/Konya/797 annexed to the application has the names Gabriel Adoyo Ondiek and James Okun Olweny as the registered proprietor under entry No.3 of 23rd March 1999. That the Plaintiff has disputed having transferred the land to the two people and as the land certificate she availed shows she was the first registered proprietor under entry No.1 of 14th March 1991, it is only fair and just that the Defendant be afforded an opportunity to defend this suit on certain conditions.
6. That flowing from the foregoing the Defendant’s notices of motion dated 1st September 2016 is allowed on the following terms;
a) That the court’s judgment of 28th April 2016 is hereby set aside to allow the Defendant file and serve his defence, statement. and documents in fourteen (14) days.
b) That the Defendant do pay the Plaintiff thrown away costs assessed at Ksh.20,000/= (twenty thousand) within 14 (fourteen days) from today.
c) That should the Defendant fail, neglect or decline to comply with orders (a) and (b) above within the timelines given, the setting aside order will automatically lapse and or taken to have been vacated.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 22ND DAY OF NOVEMBER 2017
In presence of;
Plaintiff Absent
Defendant Absent
Counsel Mr. Orengo for Plaintiff/Respondent
M/S oketch for Odeny for Defendant/Applicant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
22/11/2017
22/11/2017
S.M. Kibunja Judge
Parties absent
M/S Oketch for Odeny for the Applicant/Defendant
Mr. Orengo for Plaintiff/Respondent
Court: Ruling dated and delivered in open court in presence of M/S Oketch for Odeny for Defendant/Applicant and Mr. Orengo for Plaintiff/Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
22/11/2017