Silvester Okumu v Attorney General & 5 others [2014] KEELC 386 (KLR)
The bottom line
#Kenya's High Court set aside a 1997 land judgment because the defendants were never properly served with court documents, allowing them to finally defend their case.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 9/7/2001 dismissing the 2nd Defendant's earlier set-aside application could be reviewed
Yes - the 2nd Defendant established 'sufficient reason' under Order 45 Rule 1(b) based on the mistake of his previous advocate, which engaged the Article 50 right to a fair hearing
Although mistake of counsel is not an express ground under Order 45, the court held it falls under 'any other sufficient reason'. Relying on Philip Chemwolo v Augustine Kubende and Belinda Murai v Amos Wainaina, the court held that blunders should not deny a party a hearing on merit, absent fraud or intention to overreach. The 2nd Defendant had earlier applied in 2001 and again in 2002 (withdrawn in 2006), so the application was not an afterthought.
Whether the ex parte judgment of 28/1/1997 should be set aside for lack of service
Yes - the affidavits of service were irregular and the evidence pointed to lack of proper service of summons and Plaint on the Applicants, entitling them to have the judgment set aside
The court found: the person served on the 4th Defendant (Silfano Kodoli) was disowned as a son of the deceased; the process server acknowledged the 5th Defendant was deceased at the time of service; and no affidavit of service of the Plaint and summons on the 2nd Defendant existed on the record. Per Remco Ltd v Mistry Jadva Parbay, an irregular default judgment must be set aside ex debito justitiae. Delay was excused given the deaths of the original defendants and the overriding objective.
Whether the Defendants should be granted leave to defend
Yes - having found no proper service, the Defendants are entitled to enter appearance and file defences after proper service is effected
Under Order 6 Rule 1 and Order 7 Rule 1 of the Civil Procedure Rules a defendant files a defence after being served with summons. Since service was found wanting, the Defendants are entitled to defend upon proper service being effected within the timelines ordered.
Whether the suit should be transferred to Busia
Yes - the land and the parties are in Busia County; under section 12 of the Civil Procedure Act and the overriding objective, transfer to the Busia Environment and Land Court serves efficiency and affordability
Section 12 of the Civil Procedure Act requires land suits to be instituted where the property is situate. The parcels are in Busia County, the parties reside there, the land records are kept at the Busia Lands Registry, and an Environment and Land Court now exists in Busia. Sections 1A and 1B of the Civil Procedure Act favour efficient, affordable disposal.
Legal principles established
#- Where there is no proper service of summons to enter appearance, a resulting default judgment is irregular and must be set aside as a matter of right
- A mistake by counsel or a party may constitute 'sufficient reason' for review under Order 45, and engages the right to a fair hearing under Article 50
- Suits relating to immovable property must be instituted in the court within whose local limits the property is situated
Court orders
#- 1.The order given on 9/7/2001 by Aganyanya J. and the judgment delivered on 28/1/1997 by Mbogholi Msagha J., and all consequential decrees and actions arising therefrom, are set aside and the suit shall proceed to full hearing
- 2.The Plaintiff shall properly serve the 2nd, 4th and 5th Defendants with the summons to enter appearance and Plaint within 30 days of the date of the ruling
- 3.The 2nd, 4th and 5th Defendants are granted leave to file and serve their Defences within 30 days of service of summons and Plaint
- 4.The suit and file shall after sixty days of the date of the ruling be transferred to the Busia Environment and Land Court, and the file placed before the Presiding Judge of the Busia Environment and Land Court on 28th July 2014 for further directions
- 5.The costs of the 2nd, 4th and 5th Defendants' Notices of Motion and Chamber Summons shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules for review; section 12 of the Civil Procedure Act on venue for land suits; Article 50 and Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvester Okumu v Attorney General & 5 others [2014] KEELC 386 (KLR)", Case Analysis (2014). Not stated in the judgment (suit previously before Mbogholi-Msagha J.; related suit Nairobi HCCC No. 2245 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/386/eng@2014-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.