[2018] KEELC 4194 (KLR)
The court found that the defendant was in fact duly served with the hearing notice at his shop and had signed the notice, undermining his claim of lack of service. However, considering the freshness of the case and the absence of inordinate delay in bringing the application, the court exercised its discretion in...
Source-derived case information.
- Citation
- [2018] KEELC 4194 (KLR)
- Parties
- Plaintiff: Lawrence Koskei Loiborkera; Defendant: Daudi Abdullahi Kutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 131 of 2017
- Procedural Posture
- Land and Property Suit / Ruling on Application to Set Aside Ex Parte Judgment and Proceedings
- Outcome
- Application allowed with conditions.
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Process, Right to Be Heard
- 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
Lawrence Koskei Loiborkera
Plaintiff
Daudi Abdullahi Kutu
Defendant
Procedural Posture
Land and Property Suit / Ruling on Application to Set Aside Ex Parte Judgment and Proceedings
Legal Issues
- 1 Whether the defendant was duly served with suit papers and hearing notice.
- 2 Whether the interlocutory judgment and ex parte proceedings should be set aside to allow the defendant to defend the suit.
- 3 Whether the delay in bringing the application was inordinate.
Ratio Decidendi
The court found that the defendant was in fact duly served with the hearing notice at his shop and had signed the notice, undermining his claim of lack of service. However, considering the freshness of the case and the absence of inordinate delay in bringing the application, the court exercised its discretion in favor of allowing the defendant to be heard. The court emphasized the constitutional right to a fair hearing under Article 50(1) and determined that justice would best be served by setting aside the ex parte proceedings, subject to the defendant filing his defence within 14 days and paying the costs of the application.
Court Disposition
Application allowed with conditions.
Orders
- The proceedings of 1.11.2017 are set aside.
- The defendant is granted leave to file his defence, documents, and witness statements within 14 days from the date of the ruling, failing which the application stands dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
E&L CASE NO. 131 OF 2017
LAWRENCE KOSKEI LOIBORKERA..............PLAINTIFF
VERSUS
DAUDI ABDULLAHI KUTU.............................DEFENDANT
RULING
1. This matter proceeded exparte on 1. 11. 2017 as defendant did not file any memorandum of appearance or statement of defence.
2. While the matter was pending for submissions, defendant through his advocate filed an application on 27. 11. 2017 seeking for the setting aside of the interlocutory judgment and the exparte proceedings and that he be allowed to defend the suit.
3. Applicant avers that summons were served upon his home when he was away herding his cattle in the grazing area away from home. He avers that he will be greatly prejudiced if he is not allowed to defend the suit.
4. The application is opposed through the replying affidavit of the plaintiff.
5. The application was neither argued orally or by way of submissions. The court was simply requested to give a date for ruling.
6. I have perused the record and I find that applicant is not candid about the facts on issue of “service”. If he did not get to see the summons to enter appearance and plaint on time, then what about the proceedings of 1. 11. 2017.
7. A return of service on record (dated 24. 10. 2017) indicates that applicant, was served with the hearing notice on 12. 10. 2017 at his shop where he was with his wife. He even signed at the back of the hearing notice. He has not commented on this piece of information.
8. I am inclined to believe that defendant was duly served with all the suit papers and the hearing notice.
9. Nevertheless, I have taken into account that this case is rather fresh and the delay in bringing forth the application has not been inordinate.
10. Further, it is always fair and just to ascertain that parties to a dispute get an opportunity to be heard before the court. Article 50 (1) of the constitution stipulates that:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
11. In the circumstances I allow the application on the following terms:
(i) The proceedings of 1. 11. 2017 are hereby set aside.
(ii) Applicant is hereby granted leave to file his defence, documents and statements of witnesses within 14 days from date of delivery of this ruling failure to which the application will stand as dismissed.
(iii) Applicant is condemned to pay costs of the present application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 7th MARCH, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Kitheka for plaintiff/respondents
Lekana for defendant
Applicant absent
HON. LUCY. N. MBUGUA
ELC JUDGE