Barchuro & another v Maina & another; Kuryases & 8 others (Interested Parties) (Civil Appeal 293 of 2019) [2024] KECA 1436 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a land judgment won without proof the defendants were served with a hearing notice, and sent the case back for a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in concluding that there was proper service of the hearing notice on the appellants and that the resultant judgment was regular
- 2.Whether the Court should interfere with the trial judge's exercise of discretion in declining to set aside the ex parte judgment
- 3.Whether the appellants' defence raised triable issues
- 4.Whether the dismissal of the application for substitution should be disturbed
Key legal issues
#Sufficiency of evidence of service of hearing notice
The respondents failed to establish proper service; the judgment that ensued was irregular and liable to be set aside
The affidavit of service claimed service on the defendants' clerk and by registered post to Katama Ngeywa & Co Advocates, but the certificate of posting was not exhibited and the address to which the notice was sent was not shown. The trial judge therefore had no material on which to conclude service was proper; had she considered this omission, she would have found service unestablished. The Court of Appeal was entitled to interfere with her discretionary decision on that basis.
Consequences of an irregular judgment obtained without service
An irregular default judgment is set aside ex debito justitiae as a matter of right, without inquiring into triable issues or delay
Adopting James Kanyiita Nderitu, the Court held that where a defendant was not served or properly served, the judgment is set aside as of right; the court may even act on its own motion, and considerations of triable issues or inordinate delay do not arise because the party was condemned unheard. The right to be heard before an adverse decision is fundamental to the justice system.
Triable issues in the defence
Even if regularity were assumed, the defence raised triable issues including limitation and adverse possession
The appellants asserted that the respondents' suit was barred by statute and claimed adverse possession over the property, matters requiring interrogation. The Court thus found, in the alternative, that the judge also erred in holding the defence raised no triable issues.
Limits on appellate interference with discretionary decisions
An appellate court may interfere only on established grounds such as misdirection in law, misapprehension of facts, or a plainly wrong decision
The Court set out the classic principles from East African Underwriters: interference is warranted where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or where the decision is plainly wrong. It found the judge failed to consider the insufficiency of the evidence of service, justifying interference.
Legal principles established
#- A judgment entered without evidence of service of hearing notice is irregular and must be set aside as of right, without regard to triable issues or delay
- The party asserting service of a hearing notice bears the burden of demonstrating it with proper evidence, including the certificate of posting and the address served
- A party claiming service by registered post must provide the certificate of posting and evidence of the address to which the notice was sent
Court orders
#- 1.The appeal succeeds to the extent that the order of the trial court dismissing the appellants' application dated 22nd March 2019 is set aside
- 2.The Court substitutes an order allowing the application and sets aside the judgment of the ELC delivered on 4th July 2018
- 3.The matter is remitted back to the ELC before a judge other than Odeny J for hearing and determination on merits
- 4.The appellants shall have the costs of this appeal
- 5.The Court does not interfere with the decision of the learned Judge dismissing the application for substitution of the deceased brothers
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No 172 of 2014 (ruling dated 8th August 2019)
- Jurisdiction invoked
- First appellate appeal from the Environment and Land Court under the Court of Appeal's appellate jurisdiction
Relief refused
#Interference with the dismissal of the application for substitution of the deceased brothers
No ground of appeal related to that aspect of the ruling and no party addressed the Court on it
Costs
The appellants shall have the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Absent evidence of service of the hearing notice, the judgment that ensued was in our view irregular.
In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right.
The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.
In conclusion, the appeal succeeds to the extent that we set aside the order of the trial court dismissing the appellants’ application dated 22nd March 2019. We substitute therefor an order allowing the application and hereby set aside the judgment of the ELC delivered on 4th July 2018.
The matter is remitted back to the ELC before a judge other than Odeny J, for hearing and determination on merits. The appellants shall have the costs of this appeal.
Issues in the judgment
#The affidavit of service is inconsistently dated - it is described as sworn on 13th March 2017 yet depones to service on 4th and 5th December 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barchuro & another v Maina & another; Kuryases & 8 others (Interested Parties) (Civil Appeal 293 of 2019) [2024] KECA 1436 (KLR)", Case Analysis (2024). Civil Appeal (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1436/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.