James Kanyiita Nderitu & another v Marios Philota Ghikas & another [2013] KEELC 11 (KLR)
The bottom line
#Kenya's High Court cancelled a 1996 land vesting order because the property owner was never properly served with court papers before judgment was entered against him.
What this practically means
#Executive summary
#Key legal issues
#Whether the default judgment and vesting order should be set aside
Yes; in the absence of proof of service, the ex parte judgment was irregular and is set aside ex debito justitiae, and the vesting order founded on it falls with it.
The court file was a 'skeleton file' lacking the Plaint, Summons and affidavit of service. The burden lay on the Plaintiffs to prove service by affidavit, which they failed to discharge despite orders to produce the pleadings. Even if service had been proved, serious triable issues existed — the Defendant's ownership of the property and capacity to sell land belonging to a deceased person before confirmation of the grant — warranting setting aside the judgment in any event. The Defendant and Administrator were not guilty of laches.
Burden of proving service
The party asserting service must produce an affidavit of service; failing that, no presumption of service arises.
Relying on City Service Station v Njuguna (1990) KLR 163, the court held that the Plaintiffs, who asserted that the Defendant was duly served, bore the burden of producing an affidavit of service. Only after tendering such affidavit does a presumption of service arise, and it then falls to the party questioning service to show the return was incorrect. The Plaintiffs failed to produce the affidavit despite the court's directions of 21st May 2013.
Whether laches or delay barred the applications
No; the Defendant acted promptly upon discovery and the disappearance of the court file thwarted earlier attempts to set aside the judgment.
The Defendant discovered the vesting order in June 1997 and by 10th July 1997 his advocate had prepared an application to set aside the ex parte judgment. Filing was frustrated by the disappearance of the court file, confirmed by the Deputy Registrar's letter of 11th November 1997. The Defendant then sought reconstruction of the file in February 1998. Delay was therefore attributable to circumstances beyond his control, and the court held he could not be accused of laches.
Legal principles established
#- Where a party alleges non-service of Summons and Plaint, the party alleging service must prove it by producing an affidavit of service; only then does a presumption of service arise.
- Default judgment entered without proper or any service is irregular and must be set aside ex debito justitiae as a matter of judicial duty, not discretion.
Court orders
#- 1.The Judgment, Decree and/or orders leading to the grant of the vesting order of 14th May 1996 in favour of Rehema Estate Limited over L.R NO. MN III/2720 are reviewed and set aside forthwith
- 2.The Registrar of Titles at the Mombasa District land registry to immediately remove from the register and cancel the registration of the Vesting Order vesting the suit property in the name of Rehema Estate Limited upon being served with the court order
- 3.The Plaintiffs to pay the Defendant the costs of his Application dated 7th October 2010
- 4.Each party to bear his or her own costs in respect of the Interested Party's Application dated 19th January 2013
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to review/set aside ex parte judgment and orders under civil procedure (applications for review and setting aside default judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kanyiita Nderitu & another v Marios Philota Ghikas & another [2013] KEELC 11 (KLR)", Case Analysis (2013). Nairobi HCCC No. 2173 of 1994 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/11/eng@2013-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.