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ELCAllowedBungoma HCCC (application under Order 10 rule 11 Civil Procedure Rules)

Municipal Council of Bungoma v Kenya National Trading Corporation & another [2018] KEELC 4035 (KLR)

High Court of Kenya
21 February 2018
SMS. MUKUNYA
400 words in judgment
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The bottom line

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Kenya's High Court set aside a default judgment because the defendant was never served, restoring the right to be heard in a land dispute.

What this practically means

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Executive summary

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The defendant/applicant moved the court by Notice of Motion dated 18th November 2016 under Order 10 rule 11 of the Civil Procedure Rules, Sections 3A, 3B and 1A of the Civil Procedure Act, and Articles 159 and 48 of the Constitution, seeking to set aside the ex parte judgment entered on 7/11/2011 and all subsequent orders, and to be given leave to defend the suit with the annexed defence deemed duly filed upon payment of requisite fees. The applicant contended that the judgment was irregular because the defendant was never served with summons to enter appearance or with the pleadings. It was further alleged that the plaintiff concealed material facts, namely that Bungoma High Court Civil Case No. 48 of 2007 had been filed by the defendant against the plaintiff over the same subject matter, Bungoma Municipality Plot 567, claimed to have been acquired by the defendant in 1981, in which consent orders maintaining status quo had been issued, and that the plaintiff filed the present suit in disregard of those orders. The application was not opposed; counsel for the respondent confirmed there was no opposition. Justice S. Mukunya allowed the application as prayed, with costs to the applicants. Judgment was read in open court at Bungoma on 21st February 2018.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ex parte judgment entered on 7/11/2011 should be set aside
  2. 2.Whether the defendant was served with summons to enter appearance and the pleadings
  3. 3.Whether the plaintiff concealed material facts, namely the existence of Bungoma High Court Civil Case No. 48 of 2007 over the same subject matter and consent orders maintaining status quo
  4. 4.Whether the defendant should be given leave to defend the suit with the annexed defence deemed duly filed

Key legal issues

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01

Setting aside of ex parte judgment under Order 10 rule 11 where service is disputed and material facts were allegedly concealed

Holding

The court allowed the unopposed application to set aside the judgment and grant leave to defend

Reasoning

The applicant invoked Order 10 rule 11 and the inherent jurisdiction of the court, alleging that the defendant was never served with summons to enter appearance or the pleadings, and that the plaintiff concealed the existence of Bungoma HCCC No. 48 of 2007 over the same plot and consent orders maintaining status quo. The application was unopposed, with counsel for the respondent confirming no opposition, so the court allowed it as prayed.

p. 2

Legal principles established

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  • An unopposed application may be allowed as prayed, particularly where the ex parte judgment is alleged to have been entered without service and with concealment of material facts

Court orders

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  1. 1.The Notice of Motion dated 18th November, 2016 is allowed as prayed
  2. 2.Judgment entered on 7/11/2011 and all subsequent orders set aside (as prayed in the application)
  3. 3.Defendant given leave to defend the suit and the annexed defence deemed duly filed upon payment of requisite fees (as prayed)
  4. 4.Costs of the application to the applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SM
majority

Wrote the judgment

Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules, Sections 3A, 3B and 1A of the Civil Procedure Act, and Articles 159 and 48 of the Constitution of Kenya 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application is not opposed. I allow the same as prayed with costs to the applicants.
p. 2Disposition - setting aside ex parte judgment
He prays that the Judgment entered herein on 7/11/2011 and all subsequential orders be set aside and that the defendant be given leave to defend the suit and the annexed defence be deemed as duly filed upon payment of requisite fees.
p. 2Relief sought and granted

Issues in the judgment

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minor

Internal inconsistency in the judgment: paragraph 2 states the defendant filed Bungoma High Court Civil Case No. 48 of 2007 against the plaintiff, then states the plaintiff filed 'Bungoma HCCC 48 of 2007' while that suit was sub judice, and the case number of the present suit is not stated

minor

The application is described as filed by the applicant but paragraph 3 refers to 'The respondent on realizing the entry of Judgment... filed this application', apparently an error for 'applicant'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Municipal Council of Bungoma v Kenya National Trading Corporation & another [2018] KEELC 4035 (KLR)", Case Analysis (2018). Bungoma HCCC (application under Order 10 rule 11 Civil Procedure Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4035/eng@2018-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.