John Kiptiony Bett v Joseph Kiptoo Barngetuny & another [2018] KEELC 2269 (KLR)
The bottom line
#Kenya's High Court set aside ex parte orders after doubting service was properly done, giving the defendants 15 days to file a defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants were properly served with summons and the ex parte orders
The court doubted the propriety of service on the defendants, noting they had neither entered appearance nor filed a defence and that the affidavit of service did not comply with Order 5 Rule 15
Counsel for the defendants argued the affidavit of service did not comply with Order 5 Rule 15 and that the defendants were unaware of the suit or the orders. The court observed that the suit lay dormant from 2014 until the plaintiff sought an injunction in March 2017, and the defendants' absence of appearance or defence cast doubt on whether service was properly effected. The court also doubted whether the defendants were ever served with the order underlying the contempt application, noting the 1st defendant only appeared after a warrant of arrest and the 2nd defendant had not been arrested.
Whether sufficient cause existed to set aside the ex parte orders
The court found sufficient cause existed and set aside all ex parte orders and consequential decrees, allowing the defendants to file a defence within 15 days
Guided by the Shah v Mbogo test and the Parimal v Veena exposition of 'sufficient cause', the court balanced the prejudice to each party and held that substantive justice required giving the defendants a hearing. The court considered the doubts over service, the plaintiff's own prolonged inactivity, and concerns about rogue process servers filing false affidavits of service, and concluded sufficient cause was demonstrated.
Legal principles established
#- The discretion to set aside ex parte orders is aimed at substantive justice and is not meant to aid a party who has deliberately obstructed or delayed the cause of justice
- 'Sufficient cause' requires that the party has not acted negligently, without bona fides, or in a dilatory manner, and the discretion must be exercised judiciously
Court orders
#- 1.All ex parte orders and the consequential decrees in the matter are set aside
- 2.The defendants are allowed to file a defence within 15 days from the date of the ruling, failing which the order lapses
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex parte orders (Order 5 Rule 15 procedural requirements on service considered)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kiptiony Bett v Joseph Kiptoo Barngetuny & another [2018] KEELC 2269 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2269/eng@2018-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.