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ELCPartially AllowedOriginating Summons dated 17th November 2015 (application dated 17th March 2016, filed 17th March 2017)· [2017] KEELC 2102 (KLR)

Edward Kimotho Mbia v Benina Gaciriku Mbia [2017] KEELC 2102 (KLR)

Environment and Land Court (High Court of Kenya)
16 June 2017
BOB.N. Olao
1,333 words in judgment
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The bottom line

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A Kenyan land court scrapped a default judgment won without properly serving the defendant, ruling proper service is a must, not a technicality.

What this practically means

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Executive summary

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The defendant applied by Notice of Motion (dated, erroneously, 17th March 2016 but filed 17th March 2017) to set aside an ex-parte interlocutory judgment entered against her on 21st January 2016 in an Originating Summons in which the plaintiff claimed parcel No. INOI/KIAGA/356 by adverse possession after over forty years of exclusive and continuous occupation. The defendant deponed that she was never properly served, the documents being left outside her house, and that being illiterate she did not understand them, and that she had a good defence on the merits. The plaintiff opposed, contending that the defendant had been served and had appointed an advocate who was aware of the interlocutory judgment. The court, per B.N. Olao J, held that although the process server had served copies of the Originating Summons on the defendant on 24th November 2015, he had not served summons to enter appearance as required by Order 5 of the Civil Procedure Rules, nor annexed the original summons to his affidavit of service as Order 5 Rule 15 requires. Such compliance is mandatory and an important prerequisite for a fair trial, not a mere technicality. The resulting ex-parte judgment was therefore irregular and had to be set aside ex debito justitiae, as a matter of judicial duty rather than discretion, applying Shah v Mbogo, Patel v E.A Cargo Handling Services Ltd and Remco Ltd v Mistry Jadva Parbat & Co. Ltd. The court set aside the judgment, granted the defendant fifteen days to file a reply to the Originating Summons, and, since the default was caused by the process server, ordered each party to bear their own costs of the application.

Key legal issues

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01

Whether service on the defendant complied with Order 5 of the Civil Procedure Rules

Holding

Service was defective because the process server served only the Originating Summons without summons to enter appearance signed by the Judge or an officer of the Court, nor did the affidavit of service annex the original summons

Reasoning

The process server's affidavit showed he served only copies of the Originating Summons. Order 5 requires that a summons to enter appearance issue, be signed and sealed, and accompany the pleadings; Order 5 Rule 15 requires the original summons to be annexed to the affidavit of service. None of these requirements was met. Compliance with Order 5 is mandatory because it notifies the defendant of the case and the procedure for responding, and is an important prerequisite for a fair trial.

p. 3
02

Whether an irregular ex-parte judgment should be set aside as of right or on discretion

Holding

The irregular judgment was set aside ex debito justitiae, as a matter of judicial duty rather than discretion

Reasoning

Relying on Shah v Mbogo, Patel v E.A Cargo Handling Services Ltd and Remco Ltd v Mistry Jadva Parbat & Co. Ltd, the court distinguished between an irregular default judgment (set aside as of right to uphold the integrity of the judicial process) and a regular one (set aside on terms in the court's discretion). Because service did not comply with the mandatory provisions of Order 5, the judgment fell in the first category.

p. 2

Legal principles established

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  • Where there is no proper service of summons to enter appearance, the resulting default judgment is irregular and must be set aside as a matter of right (ex debito justitiae), not as an exercise of discretion
  • The court's discretion to set aside an ex-parte judgment is wide but must not be used to assist a party who deliberately obstructs or delays the cause of justice
  • Service of summons together with the pleading is a mandatory prerequisite for a fair trial and not a mere technicality

Court orders

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  1. 1.The ex-parte judgment dated 21st January 2016 is set aside
  2. 2.The defendant is granted leave to file a reply to the Originating Summons within fifteen (15) days of the ruling
  3. 3.Each party to meet their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule (1)(1)
  • Civil Procedure RulesOrder 5 Rule 1(2) and (3)
  • Civil Procedure RulesOrder 5 Rule 15

Cases cited (3)

  • SHAH VS MBOGO
    1967 E.A 166
  • PATEL VS E.A CARGO HANDLING SERVICES LTD
    1974 E.A 75
  • REMCO LTD VS MISTRY JADVA PARBAT & CO. LTD
    2002 1 E.A 233
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Rules (Order 5) over an Originating Summons in adverse possession

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, "Edward Kimotho Mbia v Benina Gaciriku Mbia [2017] KEELC 2102 (KLR)", Case Analysis (2017). Originating Summons dated 17th November 2015 (application dated 17th March 2016, filed 17th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2102/eng@2017-06-16

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