Makomere v Isigi (Civil Appeal 13 of 2019) [2024] KECA 1807 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a default judgment because the defendant was never properly served, restoring his right to defend the case at 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 trial court erred in dismissing the appellant's application for setting aside the ex parte judgment entered in default of appearance and defence
Key legal issues
#Whether service of summons to enter appearance was properly effected on the appellant
On balance service was not properly effected; the misdescription of the appellant's home and the unexplained identification by the process server cast credible doubt on the affidavits of service, rendering the default judgment irregular.
The appellant demonstrated a misdescription of his home in the affidavits of service - a difference between two sub-locations, not merely adjoining villages - and credibly questioned who pointed him out to a process server who did not know him. Once service was credibly impugned, the burden shifted to the respondent to prove it, perhaps by calling the process server. That burden was not discharged, so the judgment was irregular and had to be set aside as of right.
Whether the draft statement of defence raised triable issues
The draft defence raised triable issues as to who breached the contract and whether any breach was a total breach warranting rescission and vacant possession; finding otherwise was a reversible error.
The suit was intensely fact-driven at two levels: who was in breach, and whether the breach amounted to a total breach justifying rescission. The draft defence pleaded that the appellant performed his obligations and that the respondent was in breach. The applicable standard is not prospects of success but whether an issue is prima facie arguable. The defence met that standard, and the application was brought without delay or overreaching conduct.
The standard of review applicable to the trial court's discretionary ruling
An abuse-of-discretion standard applies; this Court interferes only where the decision lies beyond the range of permissible outcomes, while reappraising the evidence as a first appellate court per Selle v Associated Motor Boat Co.
A trial judge is entitled to exercise her discretion on whether to set aside a default judgment, with the outer limits contained in Order 10 of the Civil Procedure Rules. Reversal is permissible only where the decision lies beyond the pale of reasonable justification. In reviewing the affidavits and evidence placed before the trial court, the Court adopts the first appellate duty of independent evaluation and conclusion.
Legal principles established
#- Where a default judgment is entered against a defendant who was not served or not properly served, it is irregular and must be set aside as of right, without inquiry into triable issues or delay
- Where the details of service are credibly impugned, the burden shifts to the party claiming service to prove that service was in fact effected, potentially by putting the process server in the witness box
- A triable issue need not be likely to succeed; it suffices that it is prima facie arguable and ought to be adjudicated at trial
- A first appellate court reviews a trial judge's discretionary decision on setting aside default judgment under an abuse-of-discretion standard, interfering only where the decision is capricious, arbitrary, in plain error, or not in accordance with law or logic
Court orders
#- 1.Appeal allowed with costs
- 2.Default judgment entered together with any consequential orders flowing therefrom set aside
- 3.Suit remanded back to the Environment and Land Court to be heard by a judge other than N.A. Matheka, J.
- 4.Directions to be given for the re-hearing of the suit on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Kakamega High Court ELC No. 26 of 2016 (ruling of 20th November 2018)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court
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.
The upshot is that I would find this appeal meritorious. I would propose that it be allowed with costs; and that the suit be remanded back to the Environment and Land Court to be heard by a judge other than N.A. Matheka, J., with the orders that the default judgment entered together with any consequential orders fiowing therefrom are all set aside and directions given for the re- hearing of the suit on priority basis.
In an irregular judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance.
The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system
But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service.
A triable issue is not one that has high or real prospects of succeeding at trial; it is one which is prima facie arguable.
When confronted with an application to set aside a default or ex parte judgment, therefore, the first task of a trial court is to determine if the default judgment is an irregular or regular one.
Issues in the judgment
#The judgment contains typographical 'fi' rendering artifacts (e.g., 'efiected', 'suficient', 'fiowing'), and the body proposes orders ('I would propose that it be allowed') without a separately signed disposition section, though the concurring judgments confirm the final orders.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)[2025] KEELRC 164 (KLR)30 Jan 2025
- Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)[2025] KEELRC 164 (KLR)30 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Makomere v Isigi (Civil Appeal 13 of 2019) [2024] KECA 1807 (KLR)", Case Analysis (2024). Court of Appeal at Kisumu (appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1807/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.