Sang (Suing as personal representative of the Estate of the Late Esther Taprandich Sang) v Koskei (Environment & Land Case 61 of 2012) [2023] KEELC 18368 (KLR) (15 June 2023) (Ruling)
- Court
- Environment & Land Court
- Case number
- 18368
- Citation
- [2023] KEELC 18368 (KLR)
- Decided
- 15 June 2023
The court found that the Applicant had raised sufficient grounds to set aside the judgment and granted a stay of execution pending the hearing and determination of the application.
Facts
The Applicant, represented by two counsel, sought to set aside an ex-parte default judgment entered against him on November 11, 2021, due to alleged lack of service of the hearing notice and the closure of his law firm in 2019. The Applicant claimed he had a good defense and had lived on the suit land since 1952.
Issues
- Whether the default judgment entered against the Applicant be set aside.
- Whether there should be stay of execution of the impugned judgment.
- Who should bear the cost.
Reasoning
The court considered the provisions of Order 12 Rule 7 of the Civil Procedure Rules and the case law on setting aside judgments. The court found that the Applicant had not been properly served with the hearing notice and had a good defense, thus setting aside the judgment and granting a stay of execution.
Outcome
The ex-parte default judgment was set aside, and a stay of execution was granted.
Orders
- Set aside the ex-parte default judgment.
- Grant a stay of execution pending the hearing and determination of the application.
Remedies
- Allow the Applicant to be heard on merit.
- Grant security for due performance.
Authorities cited
Legislation (3)
- Civil Procedure Rules
- Civil Procedure Act
- Order 12 Rule 7
Cases cited (3)
- Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd
- Mbogo v Shah
- Sebei District Administration vs Gasyali
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