[2021] KEELC 106 (KLR)
The court found that it is fair and just to allow the application to set aside the ex parte judgment and permit the defendants to file their defence out of time. The court emphasized that its discretion under Order 10 Rule 11 of the Civil Procedure Rules is wide and should be exercised judiciously, particularly...
Source-derived case information.
- Citation
- [2021] KEELC 106 (KLR)
- Parties
- Plaintiff: John Githi Kigunda; Defendant: Stephen Kisemei Marushi; Defendant: Ahmed Ibrahim; Defendant: Mr. Malei; Defendant: Beatrice Chemeli; Defendant: Rose Akame
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to File Defence Out of Time
- Outcome
- Application allowed in its entirety.
- Judges
- JE Gicheru
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Process, Leave to File Defence Out of Time, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Githi Kigunda
Plaintiff
Stephen Kisemei Marushi
Defendant
Ahmed Ibrahim
Defendant
Mr. Malei
Defendant
Beatrice Chemeli
Defendant
Rose Akame
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Judgment and for Leave to File Defence Out of Time
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to alleged non-service of summons on the defendants.
- 2 Whether the defendants should be granted leave to file their defence out of time.
- 3 Whether the court should exercise its discretion under Order 10 Rule 11 of the Civil Procedure Rules to allow the application.
Ratio Decidendi
The court found that it is fair and just to allow the application to set aside the ex parte judgment and permit the defendants to file their defence out of time. The court emphasized that its discretion under Order 10 Rule 11 of the Civil Procedure Rules is wide and should be exercised judiciously, particularly where a party seeks to be heard on the merits. The court also noted that excluding a party from a land dispute is a severe measure that should only be taken in exceptional cases. Since the plaintiff would also have the opportunity to be heard, no prejudice would be occasioned. Accordingly, the application was allowed in its entirety.
Court Disposition
Application allowed in its entirety.
Orders
- The ex parte judgment and all consequential orders are set aside.
- The defendants are granted leave to file their defence out of time.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC CAUSE NO. 69 OF 2017
JOHN GITHI KIGUNDA............................................................................PLAINTIFF
-VERSUS-
STEPHEN KISEMEI MARUSHI.......................................................1ST DEFENDANT
AHMED IBRAHIM.............................................................................2ND DEFENDANT
MR. MALEI..........................................................................................3RD DEFENDANT
BEATRICE CHEMELI.......................................................................4TH DEFENDANT
ROSE AKAME.....................................................................................5TH DEFENDANT
RULING
This ruling is on the Notice of Motion dated 5th May, 2021 seeking the setting aside of the ex parte Judgment herein and all consequential orders. It also seeks to have the Defendants file their defence out of time.
The application which is brought under Section 1A and 3A of the Civil Procedure Act, Orders 10 Rule 11, 51 Rule 1 of the Civil Procedure Rulesand other enabling provisions of law is supported by an affidavit sworn by Stephen Kisemei Marushi.
In the affidavit, the deponent says that he was never served with the Summons to Enter Appearance. The only process that he was served with is Chamber Summons Certificate of Urgency dated 20th January, 2011 in ELC Case No. 265 of 2010 at Machakos.
He prays that the suit be heard on merit.
The application is opposed by Jonathan Karuga Kigunda, the plaintiff, who says that the Defendants were served. Counsel for the parties were to file and serve written submissions within 28 days from 14th of October but by the time I am writing this ruling in late November, no such submissions have been filed.
Be that as it may, I find it fair and just to allow the application dated 5th May, 2021 for the following reasons;
Firstly, the discretion given to the Court under Order 10 Rule 11 Civil Procedure Rules is wide and unfettered even though it should be exercised judiciously. It is judicious to allow a party craving to be heard to participate in the suit.
Secondly, locking out a party from a land case is a draconian move which should only happen in extreme cases.
Thirdly, the Plaintiff has nothing to lose because he too will be given a fair hearing.
For the above reasons, I allow the application dated 5th May, 2021 in its entirety.
Costs in the cause.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 2ND DAY OF DECEMBER, 2021
M.N. GICHERU
JUDGE