Samson Cheruiyot Barnwach & another v Mary Cheptoo Sote [2020] KECA 550 (KLR)
The bottom line
#The Court of Appeal upheld an eviction decree entered without the defendants' participation, confirming that technically imperfect but substantively proper service of summons is still valid service in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Standard of appellate interference with discretionary decisions
The appellants had to show the Judge misdirected herself or was clearly wrong; the Court found no such misdirection and declined to interfere.
Applying Mbogo vs Shah, the Court held that where a judge properly considered the circumstances surrounding an ex parte judgment and took into account relevant factors, an appellate court has no justification to interfere. The letter from the respondent's advocate referred to the service and was therefore relevant, not extraneous.
Compliance of the affidavit of service with Order 5 rule 15
The affidavit of service complied with Order 5 rule 15 because it stated the date, time and manner of service and identified the person who pointed out each appellant; the absence of that person's address was not mandatory.
The Court found the affidavit indicated the date, time and manner of service and identified the person who pointed out each appellant. The omission of the identifying person's address was not a mandatory requirement and did not vitiate service, so the finding of proper service could not be disturbed.
Triable issues and intended defence
The appellants' purported defence was a mere denial raising no triable issue, and no draft defence was annexed to the motion, supporting refusal to set aside the ex parte judgment.
The learned Judge considered the appellants' purported defence and found it was no more than a mere denial. The High Court also found that no draft defence was annexed to the motion, making it difficult to determine whether the appellants had any defence to the respondent's suit, justifying refusal to set aside the judgment.
Legal principles established
#- An appellate court will not interfere with the exercise of a trial judge's discretion unless the judge misdirected himself in some matter, arrived at a wrong decision as a result, or was clearly wrong in the exercise of discretion resulting in misjustice.
- An affidavit of service under Order 5 rule 15 of the Civil Procedure Rules need not state the address of the person who identified the party to the process server; omission of that address does not vitiate service.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nakuru
- High Court Civil Case No. 114 of 2012
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court (ruling on setting aside ex parte decree); no specific constitutional provision cited for the appeal itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Cheruiyot Barnwach & another v Mary Cheptoo Sote [2020] KECA 550 (KLR)", Case Analysis (2020). Civil Appeal No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/550/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.