Jenifer Akeyo Wale v Joseph Ondiek Olweny [2017] KEELC 725 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Properness of service of summons to enter appearance
Service was properly effected; the affidavit of service by David Elvis Ochieng confirmed service on the Defendant, who was pointed out by his wife, and a further service on 30th June 2016 in the presence of his wife Pamela Achieng.
The Defendant claimed summons were left with his wife who never handed them over, but produced no affidavit from her to substantiate this. The process server's affidavits of service showed personal identification of the Defendant on two occasions, both times with a spouse present, and that the Defendant declined to sign acknowledgment of service. Uncorroborated allegations cannot defeat sworn affidavits of service.
Whether the Defendant gave a reasonable explanation for failure to enter appearance and file defence, and whether the ex parte judgment should be set aside
Although service was proper, the Defendant's claim of possession of the suit land was disputed and the land certificate showed other registered proprietors; in the interest of justice the judgment was set aside on conditions.
The court found the Defendant's possession claim disputed by the Plaintiff's replying affidavit, and noted the land certificate annexed to the application showed Gabriel Adoyo Ondiek and James Okun Olweny as registered proprietors, while the Plaintiff claimed to be first registered proprietor. Balancing these disputes against the principle that suits should be determined on their merits, the court exercised discretion to set aside the judgment conditionally.
Legal principles established
#- A party alleging improper service must substantiate the allegation by affidavit evidence; uncorroborated allegations will not displace an affidavit of service.
- Where a defendant shows an arguable case on ownership of suit land, it is fair and just to set aside ex parte judgment on conditions to allow the suit be heard on its merits.
Court orders
#- 1.The court's judgment of 28th April 2016 is set aside to allow the Defendant file and serve his defence, statement and documents in fourteen (14) days.
- 2.The Defendant to pay the Plaintiff thrown away costs assessed at Ksh.20,000/= within 14 days.
- 3.Should the Defendant fail, neglect or decline to comply with orders (a) and (b) within the timelines given, the setting aside order will automatically lapse and/or be taken to have been vacated.
- 4.The notice of motion dated 1st September 2016 is allowed on those terms; the prayer for stay of execution was effectively rendered unnecessary by the setting aside of the judgment.
- Jurisdiction invoked
- Inherent and discretionary powers of the Environment and Land Court to set aside ex parte judgment (not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jenifer Akeyo Wale v Joseph Ondiek Olweny [2017] KEELC 725 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/725/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.