Laurenzia Wanjuki & 2 others v Simeon Njeru Difatha [2017] KEELC 2980 (KLR)
The bottom line
#Kenya's High Court set aside an eight-year-old default judgment because the defendant proved service of summons was doubtful and had a genuine defence.
What this practically means
#Executive summary
#Key legal issues
#Disputed service of summons
Since the evidence on service was conflicting and unresolvable, the fact of service was treated as not proved, entitling the Defendant to setting aside of the default judgment.
The Defendant denied service, alleging the affidavit of service wrongly stated he was served in Gichegeni village when he resides in Iriari. The Plaintiffs insisted service was effected. The Defendant did not seek cross-examination of the process server. Adopting Gandhi Brothers, the court invoked section 3 of the Evidence Act: where a fact is neither proved nor disproved, it is not proved. Unserved defendants are entitled to setting aside as of right.
Good defence on the merits
The Defendant's proposed defence raised triable issues: he is the registered proprietor of the suit land and had filed Embu HCCC No. 132 of 2009 seeking eviction of the Plaintiffs, which suits have been consolidated.
The Defendant claimed to be the registered proprietor of Title No. KAGAARI/KANJA/397 and to have filed a separate suit for the Plaintiffs' eviction. The Plaintiffs themselves obtained consolidation of the two suits before Hon. Justice Bwonwonga on 23rd April 2015. On that basis the proposed defence could not be dismissed as a sham, independently justifying setting aside of the default judgment.
Regularity of the interlocutory judgment
The interlocutory judgment was irregular from the onset because the plaint sought only declaratory and trust-related relief with no liquidated damages claim, so Order IXA of the 1948 Rules was inapplicable.
The court noted that under both the 1948 and 2010 Civil Procedure Rules, interlocutory judgment lies only where liquidated damages are claimed. The plaint sought a declaration of trust, determination of the trust and transfer of the suit property, plus costs - no liquidated claim. However, since this ground was not canvassed by the parties, the court declined to base its ruling on it.
Legal principles established
#- A party who has not been served or properly served is entitled as of right to have a default judgment set aside.
- Where service was proper, the court retains discretion to set aside default judgment if the defendant shows a good defence on the merits.
- Where evidence on service is evenly balanced, the fact is treated as not proved under section 3 of the Evidence Act, warranting setting aside of the default judgment.
- Denying a party audience should be the court's last resort.
- Interlocutory judgment cannot be entered where the plaint does not claim liquidated damages.
Court orders
#- 1.The default judgement entered against the Defendant on 19th March 2009 is hereby set aside with all consequential orders
- 2.The Defendant shall file and serve his statement of defence within 14 days from the date hereof
- 3.The Plaintiffs shall file and serve their reply to defence, if any, within 7 days of service of the Defence
- 4.The costs of the application shall be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the High Court under the Civil Procedure Act and Civil Procedure Rules (Order IXA of the Civil Procedure Rules 1948)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laurenzia Wanjuki & 2 others v Simeon Njeru Difatha [2017] KEELC 2980 (KLR)", Case Analysis (2017). Embu HCCC No. 21 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2980/eng@2017-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.