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ELCAllowedNot stated in judgment (Notice of Motion dated 31/7/2014)· [2014] KEELC 74 (KLR)

Charles Khisa Ngwengwe & 3 others v Simon Wachie & 5 others [2014] KEELC 74 (KLR)

High Court of Kenya
2 December 2014
EOE. Obaga
573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court set aside a default judgment because the plaintiff could not prove the defendants were properly served with summons — service errors can undo even final judgments.

What this practically means

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Executive summary

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The applicants, defendants in a suit, filed a notice of motion dated 31/7/2014 seeking to set aside ex-parte proceedings culminating in a judgment delivered on 30/7/2014, contending they were never served with summons to enter appearance or file a defence, and that the process server's affidavit of service was false. They sought unconditional leave to defend on the basis of a defence raising triable issues. The respondents opposed, maintaining the judgment was regularly obtained, that the applicants were merely faulting service, had not annexed the affidavit of service, and had no triable defence. Obaga J framed the sole issue as whether there was service of summons or not. The court found the process server's affidavit demonstrably false: it deponed that summons were received from M/S Simiyu Wafula & Co. Advocates, a firm never on record, whereas the respondents had been represented by M/S Lel Bungei & Co. Advocates and later M/S Kraido & Co. Advocates. The affidavit also failed to disclose the person who identified the applicants and was scanty in detail, hence not a proper affidavit. Emphasising that service of summons is central to litigation, the court held that without proper service it is entitled to set aside an ex-parte judgment ex debitio justitiae. Even assuming proper service, the draft defence and the respondents' own replying affidavit revealed serious contested issues. The court allowed the motion, set aside the ex-parte judgment, granted the defendants unconditional leave to defend with the defence to be filed within fourteen days, and awarded the applicants costs of the application. Judgment delivered at Kitale on 2nd December 2014.

Key legal issues

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01

Whether the ex-parte judgment should be set aside for want of proper service

Holding

The affidavit of service was false and deficient; the ex-parte judgment was set aside as of justice.

Reasoning

The process server deponed he received summons from M/S Simiyu Wafula & Co. Advocates, a firm never on record; the firm on record was M/S Lel Bungei & Co. Advocates, later M/S Kraido & Co. Advocates. The process server also failed to disclose the identifying person. The affidavit was scanty and improper, so service was not proved.

p. 2
02

Whether the applicants had a defence with triable issues justifying leave to defend

Holding

Even assuming proper service, the draft defence and the respondents' replying affidavit disclosed serious contested issues warranting leave to defend.

Reasoning

The court held that even if service were assumed proper, the draft defence and the replying affidavit by the respondents revealed serious contested issues, so the applicants deserved an opportunity to defend the suit on the merits.

p. 2

Legal principles established

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  • Service of summons is central to litigation; where there is no proper service, the court is entitled as of justice to set aside an ex-parte judgment.

Court orders

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  1. 1.Ex-parte judgment entered in the suit is set aside
  2. 2.Defendants granted unconditional leave to defend the suit
  3. 3.Defence to be filed within fourteen days from the date of the order
  4. 4.Applicants granted costs of the application
Jurisdiction invoked
Inherent jurisdiction to set aside ex-parte judgment (ex debitio justitiae); statutory provision not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Khisa Ngwengwe & 3 others v Simon Wachie & 5 others [2014] KEELC 74 (KLR)", Case Analysis (2014). Not stated in judgment (Notice of Motion dated 31/7/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/74/eng@2014-12-02

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