Phillip Mutiso Mulalya v Samuel Dominic Muathe & 2 others [2022] KEELC 1033 (KLR)
The bottom line
#A Machakos land court set aside a judgment won without a hearing, restoring defendants' land rights and giving them a chance to defend the case.
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 court should set aside the ex parte judgment delivered on 12th June 2020
- 2.Whether the court should cancel the title deed issued in favour of the plaintiff and revert the suit property to the 2nd and 3rd Defendants
- 3.Whether the court should issue a temporary injunction against the Plaintiff regarding the suit property
Key legal issues
#Whether to set aside the regular ex parte judgment
Set aside, as the Applicants gave a reasonable explanation that they did not see the newspaper advertisement and have a reasonable defence raising triable issues
Although service by substituted advertisement made the judgment regular, the court held that not everyone reads newspapers and the presumption of notice is rebuttable. The purpose of service is to make a defendant aware of the suit; where that fails, substantive justice is defeated. The Applicants' innocent purchaser plea, backed by a search, sale agreement, payment evidence, transfer documents and land control board consent, raised triable issues meriting a full hearing.
Whether to cancel the Plaintiff's title and rectify the register
Granted; having set aside the judgment and consequential orders, the pre-judgment position must be restored
The court reasoned that once the ex parte judgment and all consequential orders were set aside, the parties must revert to the position they held prior to the entry of judgment, which made the prayer for cancellation of the title issued under that judgment and rectification of the register merited.
Whether a temporary injunction should issue
Refused; the Applicants had no pending suit/claim or prima facie case against the Plaintiff
Applying Order 40 Rule 1 and the Giella v Cassman Brown principles as restated in Nguruman, the court found all three conditions must be satisfied sequentially. The Applicants had not yet filed their defence or any claim, so there was no prima facie case on which irreparable injury or balance of convenience could rest, and the balance of convenience favoured rejecting the injunction.
Legal principles established
#- Setting aside an ex parte judgment is discretionary where the judgment is regular, but the court ought to set it aside ex debito justitiae where it is irregular; in both cases the court's concern is substantive justice
- Substituted service rests on a rebuttable presumption that the defendant will see the advertisement; where that outcome is not achieved, subsequent proceedings will not result in substantive justice
- A temporary injunction requires an existing suit/claim anchoring a prima facie case; without a filed case there is no foundation for the order
Court orders
#- 1.Ex parte judgment delivered on 12th June 2020, the decree issued on 15th June 2020 and all consequential orders including the one issued on 19th February 2021 are set aside and the 2nd and 3rd Defendants granted leave to defend the Plaintiff's suit
- 2.Order cancelling the title deed issued in favour of the Plaintiff and rectifying the register reverting land parcel number Donyo Sabuk/Komarock Block 1/16 to the 2nd and 3rd Defendants
- 3.Status quo after cancellation of the title deed and reversion to be maintained; no subsequent transfer or registration of any dealings in respect of the suit property pending hearing and determination of the suit
- 4.2nd and 3rd Defendants granted leave of 14 days of the ruling to file and serve their defence and any other pleadings
- 5.Costs to abide the determination of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court under the Civil Procedure Rules (Order 10 setting aside of ex parte judgment; Order 40 temporary injunctions); Article 50 of the Constitution of Kenya 2010
Relief refused
#Temporary injunction restraining the Plaintiff from entering, accessing, encroaching, alienating, developing, subdividing or interfering with the suit property
The Applicants had not yet filed a suit/claim or defence upon which an injunction could be anchored, hence no prima facie case; balance of convenience also tilted against the injunction
Costs
Costs shall abide the determination of the suit.
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.
That the exparte judgment delivered herein on 12 th June 2020 and the decree issued on 15 th June 2020 and all consequential orders thereto including the one issued on 19 th February 2021 are set aside and the 2nd and 3rd Defendants are granted leave to defend the Plaintiff’s suit.
That this honourable court be and is hereby pleased to issue an order cancelling the title deed issued in favour of the Plaintiff and to rectify the register reverting land parcel number Donyo Sabuk/Komarock Block 1/16 (the suit property) to the 2nd and 3rd Defendants.
Costs shall abide the determination of the suit.
The right not to be condemned unheard is a cardinal principle of natural justice, without which the rule of law would be without equilibrium.
Therefore, substituted service is based on the rebuttable presumption that the defendant shall be able to see the advertisement.
currently, the applicants do not have a case, leave alone a prima facie case, as against the Plaintiff upon which an application for grant of temporary injunction may be considered.
Issues in the judgment
#Supporting Affidavit of the 2nd Defendant described as 'sworn on 17th May 2020' although the application is dated 17th May 2021 - apparent year discrepancy in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phillip Mutiso Mulalya v Samuel Dominic Muathe & 2 others [2022] KEELC 1033 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1033/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.