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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 5030 (KLR)

MARGARET WANJIRU WAMBURI v GEOFFREY GITAU NDUNGU & 6 others

Environment and Land Court
27 June 2024
3,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a six-year-old default judgment in a land case, ruling that a newspaper notice buried in the classifieds was not proper notice of the lawsuit.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th February 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 9, 10, 22, 45 and 50 of the Civil Procedure Rules, the Defendants/Applicants sought stay of proceedings and eviction, setting aside of the default/interlocutory judgment entered on 2nd July 2018, stay of execution, and leave to file their defence out of time. The 1st Defendant, a Chief Inspector of Police, deposed that he only learnt of the suit and judgment when served with an order to vacate on 4th February 2024; the notice of judgment had been published in the newspaper's classified section on 23rd December 2019, and no evidence of proper substituted service existed. The Plaintiff/Respondent, registered proprietor of Mitubiri/wempa Block 2/1206, opposed through grounds of objection, having obtained the judgment in formal proof proceedings on her trespass and ownership claim under Section 26 of the Land Registration Act. The Court, guided by Article 50(1) of the Constitution and the line of authorities on setting aside ex parte judgments (CMC Holdings v Nzioki, Shah v Mbogo, Sebei District Administration v Gasyali, among others), held that the timing and placement of the newspaper notice made it unreasonable to expect the 1st Defendant to have seen it, that the application was filed without unreasonable delay, and that the applicants held a demonstrable stake and would suffer substantial loss absent a stay. The application was allowed: the default judgment and consequential orders were set aside, execution stayed, and leave granted to file a defence within 14 days. Costs were ordered to abide the outcome of the suit; prayers 1 and 2 were spent.

Key legal issues

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01

Whether the Defendants/Applicants were entitled to have the default judgment of 2nd July 2018 set aside and stay of execution granted

Holding

Yes. The notice of judgment published on 23rd December 2019 in the classified section could not reasonably have come to the attention of the 1st Defendant, a police officer during the Christmas season; the application was filed promptly after service on 4th February 2024, and the applicants hold a demonstrable stake in the land, satisfying the court that they would suffer substantial loss absent a stay.

Reasoning

The court invoked its inherent powers under Section 3A of the Civil Procedure Act and Order 10 Rule 11, guided by CMC Holdings Ltd v Nzioki, Patel v E.A. Cargo Handling, Shah v Mbogo and Sebei District Administration v Gasyali, which require the discretion to be exercised judiciously to avoid injustice. Article 50(1) of the Constitution guarantees a fair hearing, and denying a party a hearing should be the last resort. Prior orders of the court itself presumed the applicants' continued occupation, establishing a demonstrable stake and substantial loss.

p. 7
02

Whether leave should issue to file a defence out of time

Holding

Yes; given that land is an emotive subject and in the interests of justice, leave was granted to file the defence within 14 days.

Reasoning

The applicants asserted a defence raising triable issues, including alleged fraud in the plaintiff's acquisition of title, evidenced by the Green Card annexed. The court, informed by the case-law on setting aside ex parte judgments and the need to hear parties on the merits where the plaintiff can be compensated by costs, exercised its discretion in favour of allowing the defence to be ventilated.

p. 7

Legal principles established

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  • A court's discretion to set aside an ex parte judgment is exercisable judiciously to avoid injustice from excusable mistake, and notice of judgment published in the classified section of a newspaper at a time when the defendant could not reasonably be expected to see it does not amount to effective service.
  • An application to set aside brought promptly upon learning of the judgment demonstrates good faith and is filed without unreasonable delay.

Court orders

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  1. 1.Stay of execution of the judgment dated 2nd July 2018, the consequential decree and any other consequential orders pending hearing and determination of the application
  2. 2.Setting aside/review of the default/interlocutory judgment entered on 2nd July 2018 and all consequential decrees and orders arising therefrom
  3. 3.Leave granted to the Defendants/Applicants to file their defence out of time within 14 days from the date of the Ruling
  4. 4.Costs of the application to abide the outcome of the suit
  5. 5.Mention on 22nd July 2024 before the Deputy Registrar to confirm compliance; mention notice to issue by the ELC Registry

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 9 Rule 9; Order 10 Rule 11; Order 22 Rule 22; Order 45; Order 50 Rule 6
  • Constitution of Kenya, 2010Article 50(1)
  • Land Registration ActSection 26

Cases cited (13)

  • Philip Mutiso Mulalya v Samuel Dominic Muathe & 2 Others
    [2022] eKLR
  • Mandeep Chathan v Kenyatta National Hospital & 2 Others
    (2013) eKLR
  • Management Committee of Makondo Primary School & Another v Uganda National Examinations Board
    HC Civil Misc. Appl. No. 18 of 2010
  • David Kiptanui Yego & 134 Others v Benjamin Rono & 3 Others
    [2021] eKLR
  • Sebei District Administration v Gasyali
    {1968} EA 300
  • CMC Holdings Ltd v Nzioki
    [2004] KLR 17
  • Patel v E.A. Cargo Handling Services Ltd
    {1974} EA 75
  • Murtaza Hassan & Another v Ahmed Slad Kulmiye
    [2020] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Evans v Bartlam
    {1937} AC 473
  • Shah v Mbogo
    {1969} E.A. 116
  • Jesse Kimani v McConell
    {1966} EA 547
  • Trusted Society of Human Rights Alliance v Mumo Matemu
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rule 11, Order 22 Rule 22, Order 45 and Order 50 Rule 6 of the Civil Procedure Rules, 2010

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, "MARGARET WANJIRU WAMBURI v GEOFFREY GITAU NDUNGU & 6 others", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5030/eng@2024-06-27

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