Njogu (c/o Gatumuta & Co Advocate v Sibashi (Environment & Land Case 12 of 2018)  KEELC 16026 (KLR) (2 March 2023) (Ruling)
Neutral citation:  KEELC 16026 (KLR)
Republic of Kenya
Environment & Land Case 12 of 2018
LN Gacheru, J
March 2, 2023
Joseph Muchina Njogu (c/o Gatumuta & Co Advocate
Francis Mucacia Sibashi
1.There two applications before the court for consideration.
2.The first application is dated 23rd May 2022 and filed on 8th June 2022 by the Plaintiff/Applicant seeks the following orders:a.That the Court do order that the judgement-debtor be forcefully evicted from the land parcel Title No. Makuyu/Makuyu Block 1/7638, having refused to move out as per the decree of the Court.b.That the Officer Commanding Makuyu Police Station to provide security and maintain peace during the eviction.c.Costs be provided for
3.The application is premised on the grounds stated on its face and the Supporting Affidavit sworn by Joseph Njogu on 23rd May 2022. It is the Plaintiff/Applicant’s contention that he is the registered proprietor of the suit property and that the Respondent illegally trespassed onto the said property and has refused to leave. The Applicant avers that he filed this suit in 2018 which was heard and determined in his favour on 24th January 2019. That the Decree was thereafter served on the Respondent who refused to move out of the land parcel LR No. Makuyu/Makuyu Block 1/7638 (the suit property) hence the filing of the present application.
4.The Respondent opposed the application through his Replying Affidavit sworn on 7th July 2022, and filed on 15th August 2022. It is his contention that although the Applicant is the registered owner of the suit property, the Respondent has been in occupation of the same since 2005 which Plot 44 he holds under the Punda Milia F.C. Soc Ltd, Mugera Farm’s ballot. The Respondent further avers that he bought the parcel of land on the suit property from Githuka Ngugi (deceased) through his wife Mary Githuka on 16th August 2005.
5.The Respondent further avers that there was a consent dated 6th July 2014, between the Plaintiff/Applicant herein and Mary Githuka the seller, that the Applicant would be given another parcel of land as the Respondent had purchased the suit property. He denied being served any Court documents in relation to this eviction suit and averred that he was in the process of applying for the judgement dated 24th January 2019 to set aside for lack of service. He prays that the application be dismissed.
6.The second application is by the Defendant/Applicant dated 24th August 2022, and filed on 28th September 2022, seeking the following orders:a.That this honourable Court be pleased to grant a stay of execution of the judgement or decree or any part thereof entered on 24th January 2019, and/or any further proceedings or any subsequent orders therefrom pending the hearing and determination of this application.b.That this honourable Court be pleased to set aside and/or vary its interlocutory judgement entered on 24th January 2019, against the Defendant.c.That this honourable Court be pleased to grant the defendant leave to file his statement of defence and to defend the suit albeit out of time as per the draft statement of defence annexed thereto that raises cogent triable issues.d.That costs of this application be provided for.
7.The application is premised on the grounds also stated thereon and the Supporting Affidavit sworn by Francis Mucacia Sibashi on 24th August 2022. It is the Defendant/Applicant’s contention that despite judgement being delivered on 24th January 2019, he was not served with summons to enter appearance to the Plaint. The Defendant/Applicant avers that he came to learn about the interlocutory judgement after he was served with the application dated 23rd May 2022, and that after request for and entry of interlocutory judgement was made, there was no notice of entry of default judgement given to the Defendant. The Respondent further avers that the judgement is irregular and should be set aside at the risk of the Respondent suffering substantial loss. Furthermore, the Respondent avers that his defence raises triable issues which should be heard and determined on merits.
8.The Plaintiff/Respondent opposed the application dated 24th August 2022 through the Replying Affidavit of Joseph Njogu sworn on 2nd February 2023, and filed on 13th February 2023. The Plaintiff deponed that he accompanied the process server on 5th March 2018, to effect the service of the pleadings upon the Defendant. Furthermore, the Plaintiff/Respondent deponed that the Defendant/Applicant failed to file a Memorandum of Appearance at which point the Plaintiff sought interlocutory judgement which was entered. That the same process server served the Defendant/Applicant several notices which were ignored. The Plaintiff deponed that the Interlocutory Judgement was lawfully entered and ought to stand to enable him to enjoy the fruits of his judgement.
9.The two applications were canvassed together by way of written submissions.
10.The Plaintiff/Applicant filed his submissions dated 11th October 2022, through the Law Firm of Gatumuta & Co. Advocates.
11.In relation to the Plaintiff’s application dated 23rd May 2022, that sought to evict the Respondent, the Plaintiff/Applicant submitted that the judgement entered has not been set aside or appealed against and that the Courts do not issue orders in vain. The Plaintiff/Applicant further submitted that there was unexplained failure by the Respondent to enter appearance despite service and that the Defendant had admitted that the Plaintiff /Applicant had ownership of the suit property. Lastly that the Plaintiff/Applicant had been issued with a valid decree and is therefore entitled to the eviction orders sought.
12.The Plaintiff/Respondent filed further written submissions dated 2nd February 2022, opposing the application dated 24th August 2022, seeking stay of execution and setting aside of the judgment of the Court. He submitted that the correct procedure was followed from filing of the suit, Service of summons to enter appearance, request for interlocutory judgement, formal proof hearing, judgement and finally service of notice of eviction were all above board. He questioned how a process server who served the recipient in a particular application would then fail to do so in another? Lastly, the Plaintiff/Respondent submitted that despite the Defendant/Applicant being served, he declined to participate in the matter. The Plaintiff also submitted that the application dated 24th August 2022, lacks merit and ought to be dismissed.
13.The Defendant/Respondent similarly filed his written submissions dated 28th October 2022, through the Law Firm of Gori, Ombogi & Company Advocates. On the Plaintiff’s application dated 23rd May 2022, which sought eviction orders, the Defendant submitted that the application was defective for being premised on a non-existent provision of the law and ought to be dismissed.
14.The Defendant further submitted that despite the Plaintiff/Applicant being the registered owner of the suit property, he was in occupation of a parcel of land on the suit property, particularly, Plot No. 1104 under the Punda Milia F.C. Soc Ltd, Mugera Farm since 2005 having bought the plot from Mary Githuka and has thus acquired title through the doctrine of adverse possession. Lastly, the Defendant submitted that they were not served with the pleadings on summons and only came to know of the suit during the application for eviction.
15.In support of his application dated 24th August 2022, seeking stay of execution, setting aside, or varying of the judgement entered on 24th January 2019, as well as leave to defend the suit out of time, the Defendant submitted that he was never served with the summons to enter appearance. Furthermore, he submitted that in so far as the interlocutory judgement was entered without his knowledge, his defence and in particular his counterclaim raised triable issued on adverse possession. Thereafter, on the issue of setting aside of judgements, the Defendant relied on Order 10 Rule 11 of the Civil Procedure Rules which states that:
16.The Defendant/Respondent further placed reliance on the case of Ann Otieno Adul v. Patrick Lang’at & Another (2020) eKLR, where the Court held that it had power to set aside interlocutory judgement where there was good reason and upon such terms as it saw fit, as such action would take the Plaintiff back in time and cause a delay in the conclusion of her case if the matter was already fixed for formal proof such was in the case of Ann Otieno(supra). The Defendant submitted that they had offered a good explanation to persuade the Court to exercise its discretion in his favour. The Respondent therefore prayed that the application dated 23rd May 2022, be disallowed, and the application dated 24th August 2022 be allowed.
17.The Court has considered the pleadings in general, the rival writtensubmissions, the cited authorities and the relevant provisions of law and finds the main issues for determination are:1.Whether the defendants were given an opportunity to be heard and failed to utilize it?2.Whether the judgment should be set aside or reviewed?3.Whether leave to file defence should be granted;4.What orders to issue and who to bear the cost of the application?
18.The Plaintiff/Applicant in his Application dated 23rd May 2022 seeks to execute the Judgment of the Court dated 24th January 2019. However, the Defendant/Applicant in his Application dated 24th August 2022, seeks to set aside the said Judgment. The Court must then first determine whether the Defendant/Applicant has met the threshold for setting aside the ex parte Judgment before it can consider the application for execution of the said exparte Judgement.
19.In the ex parte judgement delivered on 24th January 2019, the Court declared the Plaintiff as the lawful owner of the suit property, ordered the Defendant to vacate the said suit property forthwith or be evicted and a permanent injunction issued restricting the Defendant entering the suit property.
20.This Court is vested with the requisite jurisdiction to determine the Application before it. The jurisdiction of the Court to review and set aside its decisions is wide and unfettered. In Shah v Mbogo & Another  EA 116 the Court of Appeal of East Africa held that:
21.The provisions of law with regards to setting aside ex parte orders are to be found under Order 12 Rule 7 of the Civil Procedure Rules provides:-
22.Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-
23.The Court has discretion to set aside or not to set aside an exparte judgment. Such discretion must be exercised judiciously. In deciding whether to set aside or not, the Court is guided by the decision of the Court of Appeal in the case of James Kanyiita Nderitu & Another  eKLR, where the Court stated thus:
24.As decided in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75, prior to the Court setting aside an ex parte judgement, it is trite law that it must consider whether the Applicant has any defence which raises triable issues. With the above in mind, the Court will proceed to make a determination on whether there is sufficient cause to set aside the ex parte Judgment herein.
25.Through the application dated 24th August 2022, the Defendant seeks to set aside, vary, and/or stay the execution of the orders dated 24th January 2019. The application was made on the grounds that the Applicant failed to serve the Defendant with summons to appear or the Plaint and that the Defendant came to know of the existence of the suit when he was served with the application dated 23rd May 2022, to evict him from the suit property. The Plaintiff opposed the application through an Affidavit dated 2nd February 2023, in which he averred that the Defendant was properly served and judgement lawfully entered. He thereafter annexed a signed affidavit of service.
26.This Court has carefully considered the Court record, the Affidavit of Service sworn on 24th September 2020, by one Arthur Kimamo, a process server and the copies of the decree annexed to it. The Court finds that Return of Services explains well and clearly how the Defendant was identified to him with the aid of a Police Officer and village elder when he effected service and how the service was done. To that extent, the Court finds that the Summons to Enter Appearance were properly served.
27.Having found that the Defendant was properly served, this Court is of the view that it must consider whether the defendant was accorded a chance for fair hearing. The record speaks for itself. Defendant failed to attend any other Court sessions despite being effectively served. Again, even when the matter was fixed for hearing and learned counsel failed to attend Court, there is no explanation whatsoever that has been given by the Defendants themselves as to why they did not attend Court. The totality of the facts and circumstances is that this Court is of the considered opinion that the Defendant/Applicant was accorded a chance to be heard but he chose not to.
28.Order 12 Rule 2 of the Civil Procedure Rules is clear on what the Court should do in the circumstances and the Court cannot be faulted. It states:
29.When considering an application to set aside a judgement, the Court will make two considerations; one, is whether the judgment is irregular, two, whether the judgment is regular. For an irregular judgment sought to be set aside, it shall go that way as of right because it means that the party was not given an opportunity to be heard and rules of natural justice cannot permit it to be that a party is condemned unheard. This is the Applicant’s contention herein but this Court thinks otherwise for the reason provided that the Defendant was duly served.
30.As for regular judgements, this Court places reliance on the case of Patel Case where William Duffus, P. stated; -
31.The Court herein concurs with the above dictum. This Court has discretion to set aside the judgement if it is convinced that the Defendant has a defence that raises triable issues. The Defendant/Applicant has attached a draft Defence and Counterclaim in the application. The Court has gone through it and it is the Defendant’s contention that he bought the parcel of land situate on the suit property from Mary Njoki and has been in possession of the same since 2005. The Defendant’s closing claim is that he has been in long occupation of the suit property for an extended period and thus a claim of adverse possession maybe inferred.
32.This Court is also asked to determine whether the application for stay was brought without undue delay?
33.The Plaintiff/Applicant’s application for execution was filed on 8th June 2022. The Defendant subsequently filed his response on to the application on 15th August 2022 and filed the application to stay execution on 28th September 2022. This is a period of 3 months and 22 days. Therefore, this Court finds that there was no undue delay as the Respondent took his time to respond through an Affidavit and also filed the application to set aside the ex parte judgement.
34.It is the Court considered view and in consideration of the forementioned, that the Defendant has raised a triable Defence and Counterclaim which ought to be heard and determined on their merits.
35.The two applications are running concurrently and having determined that the Defendant’s application for stay of execution is warranted and thereby allowed on the grounds provided above, the first application dated 23rd May 2022, to execute the eviction orders is dismissed on the basis that the said application has been overtaken by events following the setting aside of the regular ex-parte judgement.
36.Having now carefully considered the two Applications, the Court holds and finds that the Defendant/Applicant’s Application dated 24th August 2022, is merited and the same is allowed in terms of prayer No. (2) (3) & (4) with costs to the Plaintiff/Respondent herein.
37.However, the Notice of Motion Application dated 23rd May 2022, by the Plaintiff/Applicant is overtaken by events for having allowed the setting aside of the Judgement entered against the Defendant on 24th January 2019.
38.The above Application by the Plaintiff is thus not allowed but is dismissed with costs of the Application to the Plaintiff/Applicant herein, since the Judgement entered on 24th September 2019, was a regular Judgement.It is so ordered.
DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF MARCH, 2023.L. GACHERUJUDGEDelivered virtually in the presence of;Joel Njonjo - Court AssistantMr Gatumuta for the Plaintiff/Applicant/RespondentDefendant/Respondent/Applicant – AbsentL. GACHERUJUDGE