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Court of AppealDismissedCivil Appeal (Mombasa), ruling of Angote, J. dated 19th December 2013 in Malindi ELCC No. 162 of 2011 under appeal· [2016] KECA 470 (KLR)

James Kanyiita Nderitu & 1 other v Marios Philotas Ghikas & 1 other

Court of Appeal of Kenya
17 June 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
7,011 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that any judgment entered without properly serving the defendant can be set aside as a right, no matter how much time has passed.

What this practically means

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Executive summary

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This Court of Appeal at Mombasa (Asike-Makhandia, W. Ouko and K. M'Inoti, JJA) dismissed an appeal against a ruling of Angote, J. (19th December 2013) in Malindi ELCC No. 162 of 2011, which had set aside a default judgment, decree and vesting order issued by Mbito, J. in 1995-1996 in favour of the appellants over a six-acre subdivision in Kanamai, Kilifi County. The dispute forms part of a web of at least nine consolidated suits involving competing claims of title, adverse possession, a missing court file, two irreconcilable affidavits by the appellants' former advocate, and a police statement by the retired judge himself that his signature on the vesting order was transposed. The Court reaffirmed the distinction between regular and irregular default judgments: a judgment entered without service of summons is a nullity set aside ex debito justitiae as a matter of right, without regard to delay or triable issues, and may even be set aside on the court's own motion, since no person may be condemned unheard. The Court identified four factors establishing the irregularity, including the appellants' failure to supply the plaint and affidavit of service despite a court order. It held that Marios' death without substitution and Athman's joinder by consent, and his application filed only two days late, could not save the irregular judgment, applying the overriding objective. The substantive questions of capacity, fraudulent registration and bona fide purchase were expressly left for trial.

Key legal issues

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01

Distinction between regular and irregular default judgments and the consequences for setting them aside

Holding

A default judgment entered without service of summons is irregular and must be set aside ex debito justitiae as a matter of right, even on the court's own motion, without consideration of delay or triable issues, because the party was condemned unheard

Reasoning

The court drew a long-standing distinction: a regularly obtained default judgment engages the court's unfettered discretion under Order 10 rule 11, weighing delay, reasons, triable issues and prejudice. An irregular one, entered without service, violates the fundamental right to be heard and is set aside as of right. The right to be heard permeates the entire justice system, drawing on Onyango Oloo v Attorney General and Sangram Singh v Election Tribunal.

p. 8
02

Whether the default judgment and vesting orders of Mbito, J. were irregular

Holding

Four factors left no doubt that the default judgment and consequential orders were made without service of summons and were completely irregular, warranting the orders setting them aside

Reasoning

The court identified four factors: (1) the appellants' advocates thwarted reconstruction of the missing court file by claiming they were no longer on record; (2) the appellants defied Angote, J.'s order to supply the plaint and affidavit of service; (3) advocate G.K. Meenye swore two irreconcilable affidavits disowning and then purporting to defend the orders; and (4) Mbito, J.'s police statement that his signature on the vesting order was transposed. Together these strongly suggested the judgment was made without service.

p. 10
03

Whether the trial judge erred in entertaining the application of the deceased Marios without substitution

Holding

No error: once an irregular default judgment is brought to the court's notice, the court sets it aside as a matter of right and may do so on its own motion; the irregularity was also brought to the court's attention by other parties with standing

Reasoning

Because the irregularity doctrine operates ex debito justitiae, the defects in the manner of application (death without substitution under Order 24) could not preserve an irregular judgment. The irregularity was independently raised by the administrator of Androniki's estate and by Athman, so the court could not shut its eyes to the glaring irregularities.

p. 10
04

Whether the learned judge erred in joining Athman and entertaining his application filed two days out of time

Holding

No merit: Athman was joined by consent of the parties including the appellants, which consent order the appellants never challenged; his application was only two days late, a minor infraction the judge properly overlooked under the overriding objective

Reasoning

Consent orders can only be set aside on grounds such as fraud, mistake or misrepresentation, none of which the appellants advanced in time. The two-day delay was trivial; under section 3 of the Environment and Land Court Act and Article 159 of the Constitution, courts sustain rather than strike out pleadings on purely technical grounds where no prejudice is caused.

p. 10
05

Avoidance of prejudging merits of the nine consolidated suits

Holding

The Court refrained from making definitive findings on disputed substantive issues (Marios' capacity, Rehema's registration, Athman's adverse possession, Kanzi Bay's bona fide purchaser status) as these remain for trial

Reasoning

The substantive dispute in the nine consolidated suits over the original parcel and suit property had not yet been heard on merit by the Environment and Land Court. The Court confined itself to the procedural question of the setting aside of the default judgment and expressly reserved issues of capacity, registration, adverse possession and bona fide purchase for the trial court after full hearing.

p. 8

Legal principles established

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  • A default judgment entered without service or proper service of summons to enter appearance is an irregular judgment which must be set aside ex debito justitiae as a matter of right, not as an exercise of discretion; the court may even set it aside on its own motion, without regard to delay, triable issues or prejudice
  • Where a default judgment is regular (defendant duly served but failed to enter appearance or file defence), the court's discretion under Order 10 rule 11 to set it aside is unfettered and considers reasons for default, delay, triable issues, prejudice and the interest of justice
  • A consent judgment or order can only be set aside on the same grounds as would justify setting aside a contract, such as fraud, mistake or misrepresentation
  • Under the overriding objective and Article 159 of the Constitution, courts strive to sustain rather than strike out pleadings on purely technical grounds; minor procedural infractions causing no prejudice should not have an invalidating effect

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered
On appeal from
High Court of Kenya (Environment and Land Court), Malindi
ELCC No. 162 of 2011 (formerly Nairobi High Court Civil Suit No. 2172 of 1994)
Jurisdiction invoked
First appellate jurisdiction over the High Court/Environment and Land Court; courts of equal status under Article 162 of the Constitution invoked in framing the question

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "James Kanyiita Nderitu & 1 other v Marios Philotas Ghikas & 1 other", Case Analysis (2016). Civil Appeal (Mombasa), ruling of Angote, J. dated 19th December 2013 in Malindi ELCC No. 162 of 2011 under appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/470/eng@2016-06-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.