Ibrahim Muriithi Mutugi (Suing as the Administrator and legal representative of the Estate of Mutugi Nguri Kimbiru (deceased) v Margaret Wangechi Karoki & another [2017] KEELC 3290 (KLR)
The bottom line
#A Kenyan court set aside a land judgment won through false service papers because one person being 'served' had died nine years earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocate was properly on record
The firm of Abdul Agonga & Associates is not properly on record for the plaintiff, there being no Order 9 Rule 9 application or consent
The plaintiff was previously represented by Mosi & Company Advocates up to judgment. The incoming firm filed no application to come on record and no consent was filed between the outgoing and incoming firms, contrary to Order 9 Rule 9. The court had already refused an adjournment sought on behalf of the incoming firm.
Whether there was valid service on the defendants
Service was not properly effected; the affidavit of service was false because the 2nd defendant had died nine years before the alleged service date
The process server alleged serving both defendants on 13th November 2014, but the 1st defendant produced a death certificate showing the 2nd defendant died on 23rd February 2005. Under Section 83(1) of the Evidence Act the certificate is presumed genuine and is a public document whose relevance is unaffected by how it was obtained (Kuruma Kaniu v Republic). The plaintiff's own affidavit conceded the 2nd defendant's death.
Whether the ex-parte judgment of 20th March 2015 should be set aside
The judgment, evidence and consequential orders are set aside as a matter of right (ex debitio justitiae), with leave to defend
Because the interlocutory judgment rested on a false affidavit of service, there was no proper service, and the court has no discretion in such circumstances, following Kanji Naran v Velji Ramji. The 1st defendant was granted leave to enter appearance and file a defence within 14 days.
Legal principles established
#- Where there was no proper service, the court has no discretion and must set aside the resultant judgment as a matter of course
- Once an averment in an affidavit is shown to be false, the whole affidavit is discredited
- Admissibility of evidence turns on relevance, not on how it was obtained
- Change of advocate after judgment requires a court order or consent under Order 9 Rule 9
Court orders
#- 1.The judgment dated 20th March 2015, the evidence taken thereupto and all consequential orders are set aside
- 2.The 1st defendant is granted leave to enter appearance and file her defence within 14 days of the ruling
- 3.The plaintiff shall have 14 days from service to file any reply, so that the suit is heard inter-partes
- 4.The plaintiff shall meet the costs of the application
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 5 Rules 1 and 6 and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibrahim Muriithi Mutugi (Suing as the Administrator and legal representative of the Estate of Mutugi Nguri Kimbiru (deceased) v Margaret Wangechi Karoki & another [2017] KEELC 3290 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3290/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.