[2017] KEELC 622 (KLR)

[2017] KEELC 622 (KLR)

The court found, based on the affidavit and oral testimony of the process server, that all defendants were duly served with the plaint and summons to enter appearance, as well as with notice of the hearing date. The defendants refused to sign for the documents and failed to enter appearance or file a defence. The...

Source-derived case information.

Citation
[2017] KEELC 622 (KLR)
Parties
Plaintiff: Joel Kiragu Karigi; Plaintiff: Bernard Karimi Gacharia; Plaintiff: Joseph Ngacha Karigi; Defendant: Esther Njiraini; Defendant: Felister Wanjiku; Defendant: Muria-Igiri Nduiga; Defendant: Munguti Njau Karaga; Defendant: John Charibu; Defendant: Judy Kagio; Defendant: Lilian Nyaguthii; Defendant: Mithamo Gateru; Defendant: Ann Wambui; Defendant: Gicimu Kanji
Court
Environment and Land Court
Court Station
Environment and Land Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
3 November 2017
Case Number
Environment & Land Case 11 of 2014
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Default Judgment
Outcome
application dismissed
Judges
BN Olao
Legal Topics
Default Judgment, Service of Process, Setting Aside Judgment, Affidavit of Service
Source Language
english
Civil Procedure Land and Property Default Judgment Service of Process Setting Aside Judgment Affidavit of Service

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Parties

Joel Kiragu Karigi

Plaintiff

Bernard Karimi Gacharia

Plaintiff

Joseph Ngacha Karigi

Plaintiff

Esther Njiraini

Defendant

Felister Wanjiku

Defendant

Muria-Igiri Nduiga

Defendant

Munguti Njau Karaga

Defendant

John Charibu

Defendant

Judy Kagio

Defendant

Lilian Nyaguthii

Defendant

Mithamo Gateru

Defendant

Ann Wambui

Defendant

Gicimu Kanji

Defendant

Procedural Posture

Notice of Motion / Ruling on Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the defendants were duly served with the plaint and summons to enter appearance.
  2. 2 Whether the default judgment entered against the defendants should be set aside for lack of service.
  3. 3 Whether the court should exercise its discretion to set aside the default judgment in favour of the defendants.

Ratio Decidendi

The court found, based on the affidavit and oral testimony of the process server, that all defendants were duly served with the plaint and summons to enter appearance, as well as with notice of the hearing date. The defendants refused to sign for the documents and failed to enter appearance or file a defence. The court rejected the defendants' claims of lack of service as untruthful and found that they had deliberately sought to obstruct and delay the proceedings. The court held that its discretion to set aside a default judgment must be exercised judicially and only in favour of deserving parties. Since the defendants had not approached the court with clean hands and had attempted to...

Court Disposition

application dismissed

Orders

  • The defendants' Notice of Motion dated 22nd December 2015 is dismissed with costs.
  • The plaintiffs may proceed to execute the decree issued in their favour.