[2019] KEELC 3267 (KLR)

[2019] KEELC 3267 (KLR)

The court found that both defendants were properly served and had opportunities to participate in the proceedings. The judgment entered was regular, not ex-parte, as the 1st defendant's advocate was present but chose not to participate after an adjournment was denied. The 2nd defendant's claims of lack of notice and...

Source-derived case information.

Citation
[2019] KEELC 3267 (KLR)
Parties
Plaintiff: Joseph Mumero Wanyama; 1st Defendant: Jared Wanjala Lyani; 2nd Defendant: Hesborn Murule Lusweti
Court
Environment and Land Court
Court Station
Environment and Land Court at Bungoma
Jurisdiction
Kenya
Case Number
Civil Case 26 of 2011
Procedural Posture
Civil Case / Ruling on Applications to Set Aside Judgment and Related Motions
Outcome
Judgment dated 20th December 2017 set aside; defendants to pay thrown away costs; suit to proceed to trial.
Legal Topics
Adverse Possession, Setting Aside Judgment, Service of Process, Triable Issues, Vested Orders
Source Language
en
Land and Property Civil Procedure Adverse Possession Setting Aside Judgment Service of Process Triable Issues Vested Orders

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Parties

Joseph Mumero Wanyama

Plaintiff

Jared Wanjala Lyani

1st Defendant

Hesborn Murule Lusweti

2nd Defendant

Procedural Posture

Civil Case / Ruling on Applications to Set Aside Judgment and Related Motions

  1. 1 Whether the ex-parte judgment entered against the defendants should be set aside.
  2. 2 Whether the defendants were properly served and given an opportunity to be heard.
  3. 3 Whether the defences raised by the defendants disclose triable issues warranting a full trial.

Ratio Decidendi

The court found that both defendants were properly served and had opportunities to participate in the proceedings. The judgment entered was regular, not ex-parte, as the 1st defendant's advocate was present but chose not to participate after an adjournment was denied. The 2nd defendant's claims of lack of notice and representation were unsubstantiated, as he was repeatedly served and responded in person. However, the court determined that both defendants' defences raised triable issues, particularly regarding the nature and continuity of the plaintiff's possession and the circumstances of the land's transfer. In the interest of justice and to allow a full hearing on the merits, the court...

Court Disposition

Judgment dated 20th December 2017 set aside; defendants to pay thrown away costs; suit to proceed to trial.

Orders

  • The judgment dated 20th December 2017 is hereby set aside.
  • Each defendant shall within 30 days pay the plaintiff KES 15,000 as thrown away costs.