Charles Wabula Werunga v Defendants/Respondents
The bottom line
#Bungoma's Environment and Land Court reinstated a land suit dismissed without the owner's knowledge, but ordered him to pay overdue costs and finish the case within six months.
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 Applicant was served with the hearing notice for 5/3/2024
- 2.Whether the ex parte orders dismissing the suit on 5/3/2024 should be set aside
- 3.Whether the process server, Moses Kuloba Keya, should be summoned for cross-examination on his affidavit of service
Key legal issues
#Whether the dismissal of the suit for want of prosecution should be set aside
The dismissal was set aside because proof of service of the hearing notice was unconvincing and substantive justice required allowing the Applicant to prosecute his suit, but on strict terms
The court reviewed the record and noted the Applicant's poor conduct: failure to pay thrown away costs, court adjournment fees, and advocate and witness costs. Nonetheless, the stamped document proffered as proof of service was unconvincing since it was unclear what the stamp acknowledged. Balancing this against the fundamental principle of natural justice, the court set aside the dismissal on conditions including settlement of prior costs and a six-month timeline.
Whether the process server should be summoned for cross-examination
The court did not grant the prayer for cross-examination; it resolved the service dispute by assessing the proof of service itself
While acknowledging the Applicant's allegation of no service and the presumption of service in favour of a process server, the court found the Respondents' proof of service - a stamp of unclear meaning - to be unconvincing. Rather than ordering cross-examination, the court proceeded directly to exercise its discretion on the setting aside application, granting it subject to terms.
Legal principles established
#- The discretion to set aside ex parte decisions is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice
- Sufficient cause for setting aside is a question of fact to be assessed in the circumstances of each case, with no universal formula
- There is a presumption of service in favour of a process server, but where service is denied it is desirable that the process server be put in the witness box for cross-examination
- Courts exist to serve substantive justice and parties deserve a proper opportunity to advance their cases on the merits
Court orders
#- 1.The orders dated 5th March 2024 dismissing the suit are set aside
- 2.The Applicant to settle the costs ordered on 7th March 2023 and 1st November 2023 within 7 days
- 3.The Applicant shall ensure the suit is heard and determined within six (6) months
- 4.Costs of the application shall be costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2020
Relief refused
#Cross-examination of process server Moses Kuloba Keya on his affidavit of service
The court found the proof of service unconvincing but did not order cross-examination, instead proceeding to set aside the dismissal on substantive justice grounds with conditions
Costs of the application borne by the Defendant/Respondents
The court instead ordered costs of the application to be costs in the cause
Costs
The costs of this application shall be costs in the cause.
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.
The orders dated the March 5, 2024 are hereby set aside.
The Applicant to settle the costs ordered on March 7, 2023 and November 11, 2023 within 7 days from today.
The Applicant shall ensure that this suit is heard and determined within six (6) months.
The costs of this application shall be costs in the cause.
This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error
I find the document submitted by the Respondents as proof of service to be unconvincing.
Issues in the judgment
#The court refers inconsistently to the date of dismissal: the application seeks to set aside ex parte orders dated 5th March 2024, but the supporting affidavit and record recital state the suit was dismissed on 5th May 2024; the court itself later describes the dismissal as occurring at the hearing of 5/2/2024
The court record recital states the amendment ruling was rendered on 7/3/2023 while the Respondents' affidavit states it was delivered on 7/3/2024; the orders in the judgment refer to costs ordered on March 7, 2023
The ruling date of the amendment application is given as 7/3/2024 in the Respondents' affidavit but the court's own chronology places it on 7/3/2023, while the dismissal orders being set aside are dated 5th March 2024
The suit number of this matter is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Wabula Werunga v Defendants/Respondents", Case Analysis (2024). Not stated in judgment (suit commenced by Originating Summons dated 26/3/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6856/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.