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ELCAllowedNot stated in the excerpt· [2017] KEELC 3594 (KLR)

Jacob Nyakwa Ojwang v Nathwalal Narishidas Ghelani & 5 others [2017] KEELC 3594 (KLR)

Environment and Land Court
15 February 2017
SKS.M. Kibunja
708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside judgments against two defendants because court summons were never properly served on them.

What this practically means

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Executive summary

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By notice of motion dated 20th September 2016, the 3rd and 4th Defendants, Samuel Ogweno Okech and Mathews Owinyo Odera, sought among other prayers the setting aside of an interlocutory judgment entered on 30th January 2014 and a final judgment of 18th May 2016, together with leave to enter appearance and file defence. The Plaintiff opposed the application by replying affidavit, and counsel Ogutu and Kimanga presented rival oral submissions on 26th October 2016. The court framed five issues, centring on the propriety of service, whether the judgments should be set aside, and whether the draft defence raised triable issues. On the evidence, the court noted that the plaint described the 3rd and 4th Defendants as trustees of Afya Cooperative Kisumu. The affidavit of service of Henry Odera Osanga showed that summons were left with a receptionist who declined to sign. Since the receptionist's details were not disclosed, the court could not confirm that the recipient was an agent authorised to receive service under Order 5 rule 8(1) of the Civil Procedure Rules, and the Defendants had disowned service. Service was therefore improper, which alone justified setting aside both judgments. Further, the draft defence joined issues with the Plaintiff's claim, warranting an opportunity to be heard. The court allowed the application, set aside both judgments, granted the Defendants 30 days to enter appearance and file defence, witness statements and documents, with default causing the setting-aside orders to lapse automatically, and ordered costs of the application to be in the cause.

Key legal issues

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01

Validity of service of summons on the 3rd and 4th Defendants

Holding

Service was improper because the affidavit of service did not disclose the identity of the receptionist said to have been served, so the court could not confirm the recipient was an authorised agent under Order 5 rule 8(1) of the Civil Procedure Rules.

Reasoning

The process server, Henry Odera Osanga, deposed that he served summons on a receptionist on behalf of the 3rd and 4th Defendants, who declined to sign. The court found that because the receptionist's details were not disclosed, it could not assess whether that person had authority to receive service. The Defendants also disowned service. Improper service alone justified setting aside both the interlocutory and final judgments.

p. 2
02

Whether the draft defence raises triable issues warranting reopening the suit

Holding

Yes — the draft defence joins issues with the Plaintiff's claim, so the Defendants should be heard on the merits.

Reasoning

Beyond the defect in service, the court considered that the annexed draft defence raised matters joining issue with the Plaintiff's claim. It held that the two Defendants should be accorded an opportunity to be heard, reinforcing the decision to set aside the default judgments and grant leave to file defence within 30 days.

p. 2

Legal principles established

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  • Where the process server does not disclose the identity of the person served, the court cannot confirm that person was an agent authorised to receive service; service is then improper and any default judgment founded on it should be set aside.
  • A defendant who raises triable issues in a draft defence should be accorded an opportunity to be heard.

Court orders

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  1. 1.The interlocutory judgment entered on 30th January 2014 against the 3rd and 4th Defendants is set aside.
  2. 2.The judgment of the court dated 18th May 2016 is set aside.
  3. 3.The 3rd and 4th Defendants are granted leave to enter appearance, file and serve their statement of defence, witness statements and documents in 30 days, failing which orders (a) and (b) automatically lapse.
  4. 4.The costs of the application be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 8(1)
Jurisdiction invoked
Civil Procedure Rules, Order 5 rule 8(1) (service of summons) — the application is an interlocutory motion within the pending suit

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, "Jacob Nyakwa Ojwang v Nathwalal Narishidas Ghelani & 5 others [2017] KEELC 3594 (KLR)", Case Analysis (2017). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3594/eng@2017-02-15

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