Joyce Mukonyo Mutinda v Fredrick Ouma Ogol & District Land Registrar [2021] KEELC 1790 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 809 OF  2017

JOYCE MUKONYO  MUTINDA .......................................PLAINTIFF/RESPONDENT

VERSUS

FREDRICK  OUMA OGOL..........................................1ST DEFENDANT/ APPLICANT

DISTRICT LAND REGISTRAR...............................2ND DEFENDANT/RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 3rd September 2020,by the 1st Defendant/ Applicant seeking for orders that;

1.  The Honourable Court be pleased to set aside  Ex Parte Judgment  entered herein  on 5th March 2020,against the  1st Defendant/ Applicant  and all consequential orders  and proceeding thereto.

2.  The Applicant  be granted  leave to file a Defence out of time  or in the alternatively the attached  draft defence  be  deemed as properly  filed after the payment of the requisite  Court fees.

3.  The cost  of this Application be provided for .

The Application is premised on the grounds that the  1st Defendant/ Applicant is the legal owner  of the suit property and has always been in occupation. That the 1st  Defendant/ Applicant  was and is still  a member and shareholder  of Mahira Housing Company Limited, the Company which bought the suit property  and subdivided it to members  and not Gatundu Nyakinyua Company Limited, as alleged by the Plaintiff/ Respondent. That Mahira Housing Limited, was only selling the parcel of land to its shareholders  way back in 1989. Further that the suit was initiated against the 1st Defendant/ Applicant without him  being notified or served with the suit paper. That on 5th March 2020, the Court issued an Ex parte Judgment and subsequent orders which were unfair and amounts to injustice. That the Plaintiff/ Respondent misled the Court that the parties had been served and if the judgment issued against the 1st Defendant/ Applicant is extracted and executed, he would be occasioned loss and will suffer injustice.

In his Supporting Affidavit,  Fredrick  Ouma Ogol, averred that he has never been served with the suit papers and the averment by the process server  are false. That the process server alleges to have served him with the suit papers  in Githurai Kimbo,but that   he has never resided in the said place  and the said allegations are false as  on that day, he was in India  with his wife wherein they were both getting treatment  and he would seek to have the process server cross examined. That he learnt of the matter when it was brought to his attention by the  Investigating Officer,  from Thika CID,  when he had lodged a complaint  after he was informed  that the green card to his property  could not be traced and  what was in the parcel showed a different owner and he equally reported the matter to the police to be investigated.

That on 7th June 2016, through his Advocates he wrote to the  Land Registrar requesting for  registration of a restriction. That  by virtue of his membership  in Mahira  Housing, he was issued with plot  share certificate  No. 1383 dated 12th June 1989 in respect of  L.R 10901/37  located in Kahawa South of  Ruiru.  That he was the original allotee of L.R  1090/37, which culminated to  L.R Block 10(Mahira) 1251 after the subdivision. That he was issued with a title deed on 20th March 2013,after a transfer was done from Mahira  Housing Company Limited. That on 5th November 2015, he conducted a search  on the suit property and an official search  confirmed he was the registered owner. Further that the purported registration of Samuel  Mbauni  Gachai on 11th September  1996, as being an owner who later transferred to the  Plaintiff/ Respondent  is fraudulent and illegal.

That he was never accorded an opportunity to challenge and controvert the averments in the suit papers as the Plaintiff/ Respondent’s documentations are marred with  swearing of false affidavits of service.

The Plaintiff/ Respondent   filed a Replying Affidavit  sworn on  10th December 2020, by  John Muturi Njoroge  her Advocate on record who averred that  the Summons and Plaint were duly served  upon the Defendant/ Applicant  who failed to enter appearance. That the ex Parte Judgment issued by the Court was procedural  as the Plaintiff/ Respondent filed an Affidavit of service  dated 9th May  2018, proving that the  Defendant/ Applicant had been served. That the  Plaintiff/ Applicant was registered as the owner of the suit property upon  acquiring it vide  a sale agreement  from the  registered owner Samuel Mbauni  Gachahi,  who averred that he had procured the same by virtue of being a member of  Mahira Housing  Company limited. That he was issued with a title deed on 11th September  1986,and the same was  transferred to the Plaintiff/ Respondent. That the inclusion of Gatundu Nyakinyua Company  Limitedis a typographical error.

The Application was canvassed with by way of written submissions which the Court has carefully read and considered. The Court has also read and considered the Application, the Affidavits, the annextures thereto and the relevant provisions of law and finds that the issue for determination is Whether the 1st Defendant/ Applicants is entitled to the orders sought.

The 1st Defendant/Applicant has sought for the setting aside of the Ex Parte Judgment entered 5th March 2020,against him and further that he be allowed to file his Defence. The guiding provisions of law  with regards to setting aside Ex Parte Judgment are to be found under the provisions  of Order 12 Rule 7 of the Civil Procedure Rules which provides:-

"Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just."

Further the provision is buttressed by Order 51 Rule 15 of the Civil Procedure Rules which provides:-

"The court may set aside an order made ex parte"

In the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd …Vs… Augustine Kubede(1982-1988) KAR page 1036, the Court of Appeal held that:

“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties.  Kimani -v- MC Conmell (1966) EA 545 where a regular judgment had been entered, the court would not usually set aside the judgment unless it was satisfied that there is a triable issue.”

From the above provisions of law, it is very clear that the Court  has discretion to set aside or not to set aside an exparte judgment.  Such discretion must be exercised judiciously.  In deciding the same, the Court is guided by the decision of the Court of Appeal in the case of James Kanyiita Nderitu & another …Vs… Marios Philotas Ghikas & another [2016] eKLR,where the Court of Appeal stated thus:

“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment, among others. See Mbogo & Another –vs- Shah (1968) EA 98, Patel –vs- E.A. Cargo Handling services Ltd (1975) E.A. 75, Chemwolo & Another –vs- Kubende (1986) KLR 492 and CMC Holdings –vs- Nzioka [2004] I KLR 173.

In an irregular default judgment, on the other hand; judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

The Court must therefore determine whether or not the Judgment entered was regular or irregular. The 1st Defendant/ Applicant has denied ever being served with the Summons to Enter Appearance. It is his  contention  that at the time the process server alleges to have served him, he was not in the Country. To  prove his assertion, he has produced in evidence a copy of his passport. The Court has seen the said passport  and notes that   there is a stamp dated 5th February  2018,  indicating that the 1st Defendant/ Applicant arrived in Mumbai, India onthe said date and further a stamp indicating that he returned to the Country on  8th  April 2018. The Court has also perused the  Affidavit of Service  sworn on 9th May 2018, by the  process server alleging that the 1st Defendant/ Applicant was served with the  pleadings on  19th March 2018. There is no way this could have been possible as  it is clear that the 1st Defendant/ Applicants was not in the Country within the said month.

The  Court has further scrutinized the  sworn Affidavit of service by the process server and notes that the same does not indicate how the said process server knew that the 1st Defendant/ Applicant lived in Githurai Kimbo, nor does  it state how he was able to identify the 1st Defendant/ Applicant. There is therefore no doubt  in the Court’s mind that the said Affidavit of Service  was  based on lies  and therefore  the Judgment that was entered on the  basis of the said  Affidavit of Service was then irregular. This Court  will therefore not set aside  the Judgment as a matter of discretion, but ex debit justiciae, for a court should never countenance an irregular judgment on its record.

Having set aside the Judgment, then it would only suffice that the 1st Defendant/Applicant should be allowed to  defend the suit and thus file  his Defence.

The Upshot of the foregoing is that the Court finds that the 1st Defendant/ Applicant is entitled to the orders sought. Consequently, the Court having carefully read and considered the Notice of Motion Application dated 3rd September 2020, the Affidavit in support, the   written submissions and the relevant provisions of law finds that the said application is merited, and the same is allowed entirely with costs to the Applicant.

It is so ordered

DATED, SIGNED AND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy