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ELCDismissed

Awino v Awino & another (Environment & Land Case 34 of 2017) [2024] KEELC 5537 (KLR)

Environment and Land Court
24 July 2024
1,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to set aside a land judgment because affidavits proved the defendant was served and simply chose not to attend court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (Ongondo J) determined a Notice of Motion dated 5th March 2024 by the 1st defendant/applicant seeking stay of execution, review or setting aside of a judgment rendered against him on 15th February 2018, reopening of the plaintiff's case, and leave to file a defence out of time. The applicant contended he was never served with summons or pleadings and only learnt of the suit when served with an eviction notice dated 30th January 2024 pursuant to a decree of 21st January 2022 over land reference Kanyada/Kanyiango-Kalanya/924. The plaintiff/respondent, Francis Okech Awino, opposed, asserting due service evidenced by notices and affidavits of service, that the applicant deliberately skipped the hearing, that execution had long taken place, the decretal sum settled and the estate administered under a confirmed grant in Homa Bay SRM's Court Succession Cause No. 223 of 2014, and that the draft defence was a mere denial. The court found the affidavits of service sworn on 30th November 2017 and 15th November 2017 proved due service and had been considered in the earlier judgment. The applicant was accorded the constitutional opportunity to be heard under Articles 48, 50(1) and 159(2)(b) and (e) but opted not to participate. Relying on Ogade v Mollin and Kirugi v Kabiya, the court held the judgment legal and regular, the plaintiff having proved his case at formal proof. The application was dismissed with costs to the respondent/plaintiff on 24th July 2024.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion dated 5th March 2024 seeking stay of execution, review/setting aside of the judgment and reopening of the plaintiff's case is meritorious

Key legal issues

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01

Whether the applicant was served and accorded an opportunity to be heard

Holding

The court found that service was proved by affidavits of service sworn on 30th November 2017 and 15th November 2017, which were considered in the earlier judgment; the applicant was aware of the suit and chose not to attend.

Reasoning

The court noted that the affidavits of service had been considered at paragraph 5 of the judgment. Article 48, 50(1) and 159(2)(b) and (e) guarantee a hearing, but the applicant was accorded that opportunity and opted not to participate. Thus no violation of natural justice arose and the basis for setting aside the ex-parte judgment failed.

p. 3
02

Whether the judgment should be set aside and the case reopened

Holding

No - the judgment is legal and regular and the applicant presented no solid reasons to disturb it.

Reasoning

The court weighed the applicant's claim of non-service against the proved service and the respondent's evidence that execution took place, the judgment was fully settled and the estate administered under a confirmed grant in Homa Bay SRM's Court Succession Cause No. 223 of 2014. The draft defence was a mere denial and litigation must come to an end.

p. 3

Legal principles established

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  • A party to a case must be made aware of its existence to enable that party to either appear or not appear in court
  • The burden of proof remains on the plaintiff on a balance of probabilities even in a formal proof hearing

Court orders

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  1. 1.The application dated 5th March 2024 is dismissed with costs to the respondent/plaintiff

The bench

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

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction over the suit; application under the Civil Procedure Rules 2010 (Order 5 Rules 6 and 15, Order 8 Rule 9B cited) for setting aside judgment

Relief refused

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Interim stay of execution of the judgment and consequential orders

The applicant was duly served and accorded an opportunity to be heard; the judgment is legal and regular

p. 3

Review/setting aside of the judgment and reopening of the plaintiff's case with leave to file defence out of time

Service was proved by affidavits of service; the applicant opted not to participate in the hearing

p. 3

Costs

dismissed with costs to the respondent/plaintiff

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.

Clearly, the judgment in place in this suit, is legal and regular. The applicant has not presented solid reasons to set it aside.
p. 3regularity of ex-parte judgment
To that end, the application is devoid of merit. The same is hereby dismissed with costs to the respondent/plaintifi.
p. 3final orders/disposition
It is trite that a party to a case must be made aware of it’s existence to enable that party to either appear or not appear in court for the same; see Ogade -versus Mollin (2009) KLR 620
p. 3service and notice of proceedings

Issues in the judgment

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minor

Case number and full party names are not stated in the judgment; the applicant and 1st defendant are referred to only by role

minor

The judgment refers inconsistently to the respondent both as plaintiff and as having filed a statement of defence dated 13th December 2016

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, "Awino v Awino & another (Environment & Land Case 34 of 2017) [2024] KEELC 5537 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5537/eng@2024-07-24

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