William Macharia Maina & another v Francis Barchuro & 3 others Kibiwott Yator Kuryases & 8 others (Interested Parties) eKLR [2019] KEELC 1950 (KLR)
The bottom line
#The Environment and Land Court in Eldoret refused to overturn a default land judgment, ruling that the defendants were properly served by registered post and acted too late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants/Applicants were properly served with the hearing notice dated 4th December, 2017
- 2.Whether the judgment in favour of the plaintiffs/respondents delivered on 4th July 2018 was regular or irregularly obtained
- 3.Whether the 1st and 2nd Defendants, having died, can be substituted at this stage
- 4.Whether the applicants have a defence on the merits raising triable issues
- 5.Whether the applicants are entitled to stay of execution of the decree
Key legal issues
#Proper service of hearing notice
Service by registered post was proper and effective; the defendants were duly served
The court noted that service by registered post is a recognised mode of service under the Civil Procedure Rules. The date discrepancy in the affidavit of service was explained as a typographical error of the year (2017 for 2018), since the hearing date was given on 4th December 2017 and could not have preceded the hearing. The court found the defendants' counsel had not been attending despite notices, and that the defendants only acted when execution loomed.
Regular vs irregular default judgment
The judgment of 4th July 2018 was regular, so it could not be set aside ex debito justitiae as of right
Applying James Kanyiita Nderitu v Marios Philotas Ghikas, the court distinguished regular from irregular default judgments. Since service was proper, the setting-aside exercise was discretionary, requiring a defence with triable issues and explanation for delay. The defendants' adverse possession counterclaim was undermined by their admissions in meetings requesting time to vacate the suit land.
Abatement and substitution of deceased defendants
The applications for substitution were declined; the suit had abated against the 1st Defendant and delay in substituting the 2nd was unexplained
Under Order 24 Rules 1, 4 and 7 of the Civil Procedure Rules, non-substitution of a deceased party within one year leads to automatic abatement. An applicant must first apply to revive the abated suit and explain the delay. The applicants filed two similar applications for substitution without any application for revival or extension of time, and offered no explanation for the delay.
Legal principles established
#- Where there is proof of no proper service, an irregular default judgment may be set aside ex debito justitiae without regard to delay, but where service was proper, allowing a party who chose not to attend to re-open the matter is an abuse of process
- Where a party dies and no step is taken to substitute within one year, the suit abates and is extinguished; an application for substitution must be preceded by an application to revive the suit
- Setting aside an ex parte judgment is not automatic; the applicant must establish a defence with triable issues
Court orders
#- 1.Dismissed the application dated 22nd March 2019 seeking stay of execution and setting aside of the ex parte judgment
- 2.Declined the application for revival of the abated suit and substitution of the deceased defendants
- 3.Ordered the applicants to pay costs of the applications to the plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Rules (application under Order 12 Rule 7 and Order 24 of the Civil Procedure Rules, 2010)
Relief refused
#Setting aside of the ex parte judgment and decree of 4th July 2018
The court found there was proper service and the applicants were indolent; their defence of adverse possession was doubtful given admissions in meetings
Substitution of the 1st and 2nd deceased defendants
The suit had abated by operation of law against the 1st Defendant one year after death, and no application for revival or extension of time had been made; delay was unexplained
Stay of execution
The prayer for stay of execution was not addressed in submissions and fell with the dismissal of the applications
Costs
Costs of the applications awarded to the plaintiffs/respondents - "I find that the applications lack merit and are therefore dismissed with costs to the plaintiffs."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
On the issue of service I find that there was proper service and the defendants just woke up when the judgment and decree were up for execution.
No explanation was given why the applicant did not file an application for revival of the suit and why substitution was not done expeditiously. I find that the application for revival of an abated suit against the defendant lacks merit and is therefore declined.
The court is guided by the constitutional principles of the right of a party to be heard but this right should not create injustice and prejudice to others.
Having found that there was proper service and that there was inordinate delay in bring an application for revival of the suit that had abated and substitution of one of the defendants, I find that the applications lack merit and are therefore dismissed with costs to the plaintiffs.
Issues in the judgment
#The affidavit of service bears internally inconsistent dates, noted and explained by the court as a probable year error
The judgment does not state the suit case number or a formal citation; the parties' names and parcel number must be drawn from the body of the text
Date inconsistency in the respondent's submissions regarding the 2nd Defendant's death (16th June 2018 vs 05th April 2019 stated elsewhere)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Macharia Maina & another v Francis Barchuro & 3 others Kibiwott Yator Kuryases & 8 others (Interested Parties) eKLR [2019] KEELC 1950 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1950/eng@2019-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.