[2023] KEELC 16026 (KLR)

Njogu (c/o Gatumuta & Co Advocate v Sibashi (Environment & Land Case 12 of 2018) [2023] KEELC 16026 (KLR) (2 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16026 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case 12 of 2018

LN Gacheru, J

March 2, 2023

Between

Joseph Muchina Njogu (c/o Gatumuta & Co Advocate

Plaintiff

and

Francis Mucacia Sibashi

Defendant

Ruling

1. There two applications before the court for consideration.

2. The first application is dated May 23, 2022 and filed on June 8, 2022 by the Plaintiff/Applicant seeks the following orders:a.That the Court do order that the judgement-debtor be forcefully evicted from the land parcel Title No Makuyu/Makuyu Block 1/7638, having refused to move out as per the decree of the Court.b.That the Officer Commanding Makuyu Police Station to provide security and maintain peace during the eviction.c.Costs be provided for

3. The application is premised on the grounds stated on its face and the Supporting Affidavit sworn by Joseph Njogu on May 23, 2022. It is the Plaintiff/Applicant’s contention that he is the registered proprietor of the suit property and that the Respondent illegally trespassed onto the said property and has refused to leave. The Applicant avers that he filed this suit in 2018 which was heard and determined in his favour on January 24, 2019. That the Decree was thereafter served on the Respondent who refused to move out of the land parcel LR No Makuyu/Makuyu Block 1/7638 (the suit property) hence the filing of the present application.

4. The Respondent opposed the application through his Replying Affidavit sworn on July 7, 2022, and filed on August 15, 2022. It is his contention that although the Applicant is the registered owner of the suit property, the Respondent has been in occupation of the same since 2005 which Plot 44 he holds under the Punda Milia FC Soc Ltd, Mugera Farm’s ballot. The Respondent further avers that he bought the parcel of land on the suit property from Githuka Ngugi (deceased) through his wife Mary Githuka on August 16, 2005.

5. The Respondent further avers that there was a consent dated July 6, 2014, between the Plaintiff/Applicant herein and Mary Githuka the seller, that the Applicant would be given another parcel of land as the Respondent had purchased the suit property. He denied being served any Court documents in relation to this eviction suit and averred that he was in the process of applying for the judgement dated January 24, 2019 to set aside for lack of service. He prays that the application be dismissed.

6. The second application is by the Defendant/Applicant dated August 24, 2022, and filed on September 28, 2022, seeking the following orders:a.That this honourable Court be pleased to grant a stay of execution of the judgement or decree or any part thereof entered on January 24, 2019, and/or any further proceedings or any subsequent orders therefrom pending the hearing and determination of this application.b.That this honourable Court be pleased to set aside and/or vary its interlocutory judgement entered on January 24, 2019, against the Defendant.c.That this honourable Court be pleased to grant the defendant leave to file his statement of defence and to defend the suit albeit out of time as per the draft statement of defence annexed thereto that raises cogent triable issues.d.That costs of this application be provided for.

7. The application is premised on the grounds also stated thereon and the Supporting Affidavit sworn by Francis Mucacia Sibashi on August 24, 2022. It is the Defendant/Applicant’s contention that despite judgement being delivered on January 24, 2019, he was not served with summons to enter appearance to the Plaint. The Defendant/Applicant avers that he came to learn about the interlocutory judgement after he was served with the application dated May 23, 2022, and that after request for and entry of interlocutory judgement was made, there was no notice of entry of default judgement given to the Defendant. The Respondent further avers that the judgement is irregular and should be set aside at the risk of the Respondent suffering substantial loss. Furthermore, the Respondent avers that his defence raises triable issues which should be heard and determined on merits.

8. The Plaintiff/Respondent opposed the application dated August 24, 2022 through the Replying Affidavit of Joseph Njogu sworn on February 2, 2023, and filed on February 13, 2023. The Plaintiff deponed that he accompanied the process server on March 5, 2018, to effect the service of the pleadings upon the Defendant. Furthermore, the Plaintiff/Respondent deponed that the Defendant/Applicant failed to file a Memorandum of Appearance at which point the Plaintiff sought interlocutory judgement which was entered. That the same process server served the Defendant/Applicant several notices which were ignored. The Plaintiff deponed that the Interlocutory Judgement was lawfully entered and ought to stand to enable him to enjoy the fruits of his judgement.

9. The two applications were canvassed together by way of written submissions.

10. The Plaintiff/Applicant filed his submissions dated October 11, 2022, through the Law Firm of Gatumuta & Co Advocates.

11. In relation to the Plaintiff’s application dated May 23, 2022, that sought to evict the Respondent, the Plaintiff/Applicant submitted that the judgement entered has not been set aside or appealed against and that the Courts do not issue orders in vain. The Plaintiff/Applicant further submitted that there was unexplained failure by the Respondent to enter appearance despite service and that the Defendant had admitted that the Plaintiff /Applicant had ownership of the suit property. Lastly that the Plaintiff/Applicant had been issued with a valid decree and is therefore entitled to the eviction orders sought.

12. The Plaintiff/Respondent filed further written submissions dated February 2, 2022, opposing the application dated August 24, 2022, seeking stay of execution and setting aside of the judgment of the Court. He submitted that the correct procedure was followed from filing of the suit, Service of summons to enter appearance, request for interlocutory judgement, formal proof hearing, judgement and finally service of notice of eviction were all above board. He questioned how a process server who served the recipient in a particular application would then fail to do so in another? Lastly, the Plaintiff/Respondent submitted that despite the Defendant/Applicant being served, he declined to participate in the matter. The Plaintiff also submitted that the application dated August 24, 2022, lacks merit and ought to be dismissed.

13. The Defendant/Respondent similarly filed his written submissions dated October 28, 2022, through the Law Firm of Gori, Ombogi & Company Advocates. On the Plaintiff’s application dated May 23, 2022, which sought eviction orders, the Defendant submitted that the application was defective for being premised on a non-existent provision of the law and ought to be dismissed.

14. The Defendant further submitted that despite the Plaintiff/Applicant being the registered owner of the suit property, he was in occupation of a parcel of land on the suit property, particularly, Plot No 1104 under the Punda Milia FC Soc Ltd, Mugera Farm since 2005 having bought the plot from Mary Githuka and has thus acquired title through the doctrine of adverse possession. Lastly, the Defendant submitted that they were not served with the pleadings on summons and only came to know of the suit during the application for eviction.

15. In support of his application dated August 24, 2022, seeking stay of execution, setting aside, or varying of the judgement entered on January 24, 2019, as well as leave to defend the suit out of time, the Defendant submitted that he was never served with the summons to enter appearance. Furthermore, he submitted that in so far as the interlocutory judgement was entered without his knowledge, his defence and in particular his counterclaim raised triable issued on adverse possession. Thereafter, on the issue of setting aside of judgements, the Defendant relied on Order 10 Rule 11 of theCivil Procedure Rules which states that:'Where judgment has been entered under this Order, the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.'

16. The Defendant/Respondent further placed reliance on the case of Ann Otieno Adul v Patrick Lang’at & Another (2020) eKLR, where the Court held that it had power to set aside interlocutory judgement where there was good reason and upon such terms as it saw fit, as such action would take the Plaintiff back in time and cause a delay in the conclusion of her case if the matter was already fixed for formal proof such was in the case of Ann Otieno(supra). The Defendant submitted that they had offered a good explanation to persuade the Court to exercise its discretion in his favour. The Respondent therefore prayed that the application dated May 23, 2022, be disallowed, and the application dated August 24, 2022 be allowed.

17. The Court has considered the pleadings in general, the rival writtensubmissions, the cited authorities and the relevant provisions of law and finds the main issues for determination are:1. Whether the defendants were given an opportunity to be heard and failed to utilize it?2. Whether the judgment should be set aside or reviewed?3. Whether leave to file defence should be granted;4. What orders to issue and who to bear the cost of the application?

18. The Plaintiff/Applicant in his Application dated May 23, 2022 seeks to execute the Judgment of the Court dated January 24, 2019. However, the Defendant/Applicant in his Application dated August 24, 2022, seeks to set aside the said Judgment. The Court must then first determine whether the Defendant/Applicant has met the threshold for setting aside the ex parte Judgment before it can consider the application for execution of the said exparte Judgement.

19. In the ex parte judgement delivered on January 24, 2019, the Court declared the Plaintiff as the lawful owner of the suit property, ordered the Defendant to vacate the said suit property forthwith or be evicted and a permanent injunction issued restricting the Defendant entering the suit property.

20. This Court is vested with the requisite jurisdiction to determine the Application before it. The jurisdiction of the Court to review and set aside its decisions is wide and unfettered. In Shah v Mbogo & Another [1967] EA 116 the Court of Appeal of East Africa held that:'This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.'

21. The provisions of law with regards to setting aside ex parte orders are to be found under Order 12 Rule 7 of the Civil Procedure Rules provides:-'Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just.'

22. Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-The Court may set aside an order made ex parte

23. The Court has discretion to set aside or not to set aside an exparte judgment. Such discretion must be exercised judiciously. In deciding whether to set aside or not, the Court is guided by the decision of the Court of Appeal in the case of James Kanyiita Nderitu & Another [2016] eKLR, where the Court stated thus:'From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the Court to set aside the default judgement and to grant him leave to defend the suit. In such a scenario, the Court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his Memorandum of Appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another –vs- Shah (1968) EA 98, Patel –vs- EA Cargo Handling services Ltd (1975) EA 75, Chemwolo & Another –vs- Kubende (1986) KLR 492 and CMC Holdings –vs- Nzioka [2004] I KLR 173. In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The Court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the Court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.'

24. As decided in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75, prior to the Court setting aside an ex parte judgement, it is trite law that it must consider whether the Applicant has any defence which raises triable issues. With the above in mind, the Court will proceed to make a determination on whether there is sufficient cause to set aside the ex parte Judgment herein.

25. Through the application dated August 24, 2022, the Defendant seeks to set aside, vary, and/or stay the execution of the orders dated January 24, 2019. The application was made on the grounds that the Applicant failed to serve the Defendant with summons to appear or the Plaint and that the Defendant came to know of the existence of the suit when he was served with the application dated May 23, 2022, to evict him from the suit property. The Plaintiff opposed the application through an Affidavit dated February 2, 2023, in which he averred that the Defendant was properly served and judgement lawfully entered. He thereafter annexed a signed affidavit of service.

26. This Court has carefully considered the Court record, the Affidavit of Service sworn on September 24, 2020, by one Arthur Kimamo, a process server and the copies of the decree annexed to it. The Court finds that Return of Services explains well and clearly how the Defendant was identified to him with the aid of a Police Officer and village elder when he effected service and how the service was done. To that extent, the Court finds that the Summons to Enter Appearance were properly served.

27. Having found that the Defendant was properly served, this Court is of the view that it must consider whether the defendant was accorded a chance for fair hearing. The record speaks for itself. Defendant failed to attend any other Court sessions despite being effectively served. Again, even when the matter was fixed for hearing and learned counsel failed to attend Court, there is no explanation whatsoever that has been given by the Defendants themselves as to why they did not attend Court. The totality of the facts and circumstances is that this Court is of the considered opinion that the Defendant/Applicant was accorded a chance to be heard but he chose not to.

28. Order 12 Rule 2 of the Civil Procedure Rules is clear on what the Court should do in the circumstances and the Court cannot be faulted. It states:'If on the day fixed for hearing, after the suit has been called on for hearing outside the Court, only the plaintiff attends, if the Court is satisfied—(a)That notice of hearing was duly served, it may proceed ex parte;(b)That notice of hearing was not duly served, it shall direct a second notice to be served; or(c)That notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing.'

29. When considering an application to set aside a judgement, the Court will make two considerations; one, is whether the judgment is irregular, two, whether the judgment is regular. For an irregular judgment sought to be set aside, it shall go that way as of right because it means that the party was not given an opportunity to be heard and rules of natural justice cannot permit it to be that a party is condemned unheard. This is the Applicant’s contention herein but this Court thinks otherwise for the reason provided that the Defendant was duly served.

30. As for regular judgements, this Court places reliance on the case of Patel Case where William Duffus, P. stated; -'The main concern of the Court is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgement as is the case here the Court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan, J put it 'a triable issue' that is an issue which raises a prima facie defence and which should go to trial for adjudication.

31. The Court herein concurs with the above dictum. This Court has discretion to set aside the judgement if it is convinced that the Defendant has a defence that raises triable issues. The Defendant/Applicant has attached a draft Defence and Counterclaim in the application. The Court has gone through it and it is the Defendant’s contention that he bought the parcel of land situate on the suit property from Mary Njoki and has been in possession of the same since 2005. The Defendant’s closing claim is that he has been in long occupation of the suit property for an extended period and thus a claim of adverse possession maybe inferred.

32. This Court is also asked to determine whether the application for stay was brought without undue delay?

33. The Plaintiff/Applicant’s application for execution was filed on June 8, 2022. The Defendant subsequently filed his response on to the application on August 15, 2022 and filed the application to stay execution on September 28, 2022. This is a period of 3 months and 22 days. Therefore, this Court finds that there was no undue delay as the Respondent took his time to respond through an Affidavit and also filed the application to set aside the ex parte judgement.

34. It is the Court considered view and in consideration of the forementioned, that the Defendant has raised a triable Defence and Counterclaim which ought to be heard and determined on their merits.

35. The two applications are running concurrently and having determined that the Defendant’s application for stay of execution is warranted and thereby allowed on the grounds provided above, the first application dated May 23, 2022, to execute the eviction orders is dismissed on the basis that the said application has been overtaken by events following the setting aside of the regular ex-parte judgement.

36. Having now carefully considered the two Applications, the Court holds and finds that the Defendant/Applicant’s Application dated August 24, 2022, is merited and the same is allowed in terms of prayer No (2) (3) & (4) with costs to the Plaintiff/Respondent herein.

37. However, the Notice of Motion Application dated May 23, 2022, by the Plaintiff/Applicant is overtaken by events for having allowed the setting aside of the Judgement entered against the Defendant on January 24, 2019.

38. The above Application by the Plaintiff is thus not allowed but is dismissed with costs of the Application to the Plaintiff/Applicant herein, since the Judgement entered on September 24, 2019, was a regular Judgement.

It is so ordered.

DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF MARCH, 2023. L. GACHERUJUDGEDelivered virtually in the presence of;Joel Njonjo - Court AssistantMr Gatumuta for the Plaintiff/Applicant/RespondentDefendant/Respondent/Applicant – AbsentL. GACHERUJUDGE