Mary Chelangat Chumo v Elizabeth Chepkorir Ngeno [2018] KEELC 1264 (KLR)
The bottom line
#A Kericho court cancelled a default land judgment because the defendant was never properly served, allowing her to finally defend her claim.
What this practically means
#Executive summary
#Key legal issues
#Service of summons
Service was defective as the process server's affidavit did not disclose who identified the Defendant or accompanied the plaintiff
Order 5 rule 15(1) requires the affidavit of service to state the time, manner of service and the name and address of the person identifying the person served. The process server here stated only that he met the Defendant weeding maize at her home without saying who introduced him to her. Following National Bank of Kenya v Peter Oloo Aringo, such service is defective.
Regularity of judgment
The default judgment was irregular since it followed defective service
Relying on Oloo Aringo and Frigonken Limited as cited in James Kanyita Nderitu, where there is no proper service the resulting default judgment is irregular and must be set aside as of right.
Triable issues
The Defendant's replying affidavit raised pertinent issues on her claim to the suit land warranting a full hearing
Although no draft defence was attached, the Defendant raised issues relating to her claim that the suit land belonged to her late mother through a woman-to-woman marriage and that she had lived there all her life. Applying Tree Shed Motor and Patel v East Africa Cargo Handling, a triable issue is one raising a prima facie defence which should go to trial.
Entitlement to orders sought
Setting aside granted with thrown-away costs to the Plaintiff, balancing the interests of both parties and the delay
The court noted justice cuts both ways, that the Defendant moved court only when served with an eviction order, and that the case dates back to 2016. It exercised discretion to set aside the judgment on conditions of thrown away costs and prompt filing of defence.
Legal principles established
#- A process server must state the time, date, manner of service and the person identifying the served party; failure renders service defective and any default judgment irregular
- A default judgment obtained without proper service is irregular and must be set aside ex debito justitiae
- Even where service is valid, a default judgment will be set aside if the defence raises triable issues
Court orders
#- 1.Set aside the ex-parte judgment and decree issued on 14th December 2017
- 2.Applicant to pay the Plaintiff Kshs. 20,000 as thrown away costs
- 3.Defendant to file her defence within 21 days
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Not expressly stated; Court exercising inherent jurisdiction under the Civil Procedure Act and Rules to set aside ex-parte judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Chelangat Chumo v Elizabeth Chepkorir Ngeno [2018] KEELC 1264 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1264/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.