[2018] KEELC 1436 (KLR)
The court found that the application to set aside the ex parte judgment was brought expeditiously and that the draft defence exhibited by the defendant raised triable issues, including allegations of fraud. The court was satisfied that the defendant had not been properly served with summons or hearing notice, and...
Source-derived case information.
- Citation
- [2018] KEELC 1436 (KLR)
- Parties
- Plaintiff: Joseph Givan Mwangi Kimani (Suing as Administrator of the estate of Mary Njoki Kimani, Deceased); Defendant: Simon Wanyika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 95 of 2017
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Process, Right to Be Heard, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Givan Mwangi Kimani (Suing as Administrator of the estate of Mary Njoki Kimani, Deceased)
Plaintiff
Simon Wanyika
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the ex parte judgment should be set aside for lack of service on the defendant.
- 2 Whether the defendant should be granted leave to file a defence raising triable issues.
- 3 Whether the eviction order should be stayed pending hearing inter partes.
Ratio Decidendi
The court found that the application to set aside the ex parte judgment was brought expeditiously and that the draft defence exhibited by the defendant raised triable issues, including allegations of fraud. The court was satisfied that the defendant had not been properly served with summons or hearing notice, and that his failure to participate in the proceedings was not intentional or deliberate. In exercising its discretion, the court held that the interests of justice required setting aside the judgment and all consequential orders to allow the suit to be heard on its merits. The court also ordered that the costs of the application would be in the cause.
Court Disposition
application allowed
Orders
- The application dated 9/2/2018 is allowed in terms of prayers (c) and (d).
- The judgment signed and delivered on 20/12/2017, the proceedings leading to the same, and all consequential orders are set aside.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 95 OF 2017
JOSEPH GIVAN MWANGI KIMANI(Suing as Administrator of the estate
ofMARY NJOKI KIMANI (Deceased).............PLAINTIFF/RESPONDENT
VERSUS
SIMON WANYIKA................................................DEFENDANT/APPLICANT
R U L I N G
1. The application dated 9/1/2018 sought an order of stay of execution in this suit and that the eviction order issued on 20/12/2017 be set aside. It further sought that this court do set aside its judgment signed and delivered on 20/12/2017, the proceedings leading to the same and all consequential orders for the suit to be heard on merit and inter partes in any event.
2. The applicant also sought that he be granted leave to file his defence as per draft statement of defence and that the costs of the application be borne by the plaintiff/respondent.
3. The application is brought under the provisions of Order 10 Rules & Order 11 Rule 7of theCivil Procedure Rules 2010 Section 3Aof theCivil Procedure Act.The grounds on which the said application is made are as follows:-
(a) The suit proceeded ex-parte and judgment was entered in favour of the plaintiff for failure on the part of the defendant to enter appearance or file defence and for failure to attend court during hearing.
(b) The defendant/applicant was never served with summons to enter appearance, plant or hearing notice at all.
(c) The failure by the defendant/applicant to enter appearance and file his defence and failure to attend court during hearing was neither intentional nor deliberate he was never aware of the existence of this suit till when police went to evict him.
(d) The defendant/applicant has been condemned unheard for omission not of his own making.
(e) The defendant has a defence raising serious triable issues.
(f) The judgment unfairly benefits the plaintiff/respondent.
4. The application is supported by the affidavit of the applicant. The gist of that affidavit is that the plaintiff commenced and finalised succession proceedings in respect of the parties’ deceased mother’s estate clandestinely and thereafter filed this suit and that the defendant was never served with summons in this suit. He only learnt of this suit on the 6th February 2018when the Officer Commanding Endebess police station came to evict him whereupon he lodged this application. He terms the affidavit of service as false. He exhibits a draft defence which raises issues of fraud which if proved, are serious in nature. He has also filed a counterclaim.
5. In reply to the application the plaintiff filed a replying affidavit sworn on 13/3/2018. The defendant filed further affidavit sworn on 13/4/2018 and filed on 20/4/2018. The defendant/applicant filed his submissions on 20/4/2018 and the plaintiff/respondent on 3/5/2018
6. I have considered the contents of those affidavits and the submissions.
7. This court has unfettered discretion in determining an application for setting aside judgement. I note that the application herein has been brought expeditiously and that it exhibits a draft defence that raises triable issues. I am inclined to grant the application.
8. Consequently I allow the application dated 9/2/2018 in terms of prayers (c)and(d) thereof and order that the costs of the application shall be in the cause.
Dated, signed and delivered at Kitale on this 24th day of September, 2018.
MWANGI NJOROGE
JUDGE
24/9/2018
Coram: Before Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga holding brief for Nasike for defendant
Plaintiff in person
Defendant present
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
24/9/2018