Tanui v Amin (Environment & Land Case 28 of 2021) [2024] KEELC 6253 (KLR) (24 September 2024) (Ruling)

Summary at a glance

Facts

The Plaintiff filed a suit against the Defendant for the determination of land ownership. The Defendant had previously obtained a court decree granting the Plaintiff proprietary rights over the land, but the Plaintiff was not served with the decree.

Issues

• Whether the court should set aside the ex-parte judgment and consequential orders
• Whether the Defendant was properly served with the summons

Reasoning

The court has discretion to set aside a default judgment if there is sufficient cause, but must consider the principle of avoiding injustice or hardship. The Defendant was not properly served with the summons, making the judgment irregular and subject to setting aside.

Outcome

The ex-parte judgment and consequential orders are set aside.

Orders

• The ex-parte proceedings are set aside.
• The Defendant is granted leave to defend the suit and file a response within 14 days.
• The Land Registrar is directed to suspend the registration of the decree and register a restriction on the title pending the hearing and determination of the application.

Remedies

• The costs of the application are to be borne by the Plaintiff.

Authorities cited