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ELCPartially AllowedNot stated in the judgment (application dated 13/1/2018)· [2018] KEELC 3693 (KLR)

John Tukei Longurokoi v Geoffrey Mepro Chepshokan [2018] KEELC 3693 (KLR)

Environment and Land Court
20 April 2018
MNMwangi Njoroge
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court set aside a default judgment even though service was proper, because every party deserves a hearing on the merits.

What this practically means

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Executive summary

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The defendant applied by notice dated 13/1/2018 to set aside an ex parte judgment delivered by the court on 20/12/2017 and all consequential orders, and to be granted leave to file his defence. He argued there was no proper service of summons on him, no mandatory 10-day notice of entry of judgment, and that the affidavit of service was false. His wife, Pamela Cherop Mopuro, swore an affidavit denying she was at home on 7/7/2017 when service was allegedly effected on her. The plaintiff opposed, stating he personally pointed out the defendant's wife to the process server and that the draft defence disclosed no triable issue. The defendant relied on Tree Shade Motors Ltd v DT Dobie and Remco Ltd v Mistry Jadva Parbat. The court framed three questions: whether the wife was served; whether such service was proper service on the defendant; and whether the judgment should be set aside. On the affidavits, the court found the wife (conceding her name was Pamela) was served, and that service on an adult family member residing with the defendant after failed attempts at personal service complied with Order 5 Rule 12. Service was thus proper. Nevertheless, exercising its discretion, and noting that denial of a hearing should be the last resort and that the exhibits revealed further facts, the court set aside the judgment, ordered a defence to be filed and served within 7 days, and directed the defendant to bear the costs of the application.

Key legal issues

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01

Whether service on the defendant's wife constituted valid service

Holding

The court found the wife was served and that service on her was proper under Order 5 Rule 12 of the Civil Procedure Rules since the defendant could not be found after attempts at personal service at his dwelling

Reasoning

The court had no reason to doubt the plaintiff's assertion that he pointed out the defendant's wife to the process server, and the wife conceded her name was Pamela, matching the person alleged served. Under Order 5 Rule 12, service may be effected on an adult family member residing with the defendant where the defendant cannot be found after reasonable attempts. The process server's attendance at the defendant's dwelling amounted to an attempt at personal service.

p. 2
02

Whether the regular ex parte judgment should be set aside in the exercise of discretion

Holding

Yes - the court exercised its discretion to set aside the judgment so that the parties' claims could be heard on their merits

Reasoning

Even where service was regular, the court retains discretion to set aside default judgment. Considering the draft defence and exhibits, which revealed further facts regarding the land, the court concluded justice would be better served by allowing a hearing on the merits, though the defendant bore responsibility for the delay caused by his failure to respond to the suit.

p. 2

Legal principles established

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  • Where there is no proper or any service of summons, the resulting default judgment is irregular and must be set aside as a matter of right; where service is regular, the court has an unfettered discretion to set aside the judgment on such terms as are just
  • Denial of a citizen's right to be heard on the merits should be the last resort of the court

Court orders

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  1. 1.The ex parte judgment delivered on 20/12/2017 and all consequential orders are set aside
  2. 2.Prayer No. 3 of the application granted - defence to be filed and served within 7 days of the order
  3. 3.The defendant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 1XA Rule 10
  • Civil Procedure RulesOrder 5 Rule 12

Cases cited (3)

  • Tree Shade Motors Ltd -vs- DT Dobie & Co. (K). Ltd and Another
    Nairobi Civil Appeal No. 38 of 1998
  • Remco Ltd -vs- Mistry Jadva Parbat & Co. Ltd and 2 Others
    Nairobi (Milimani) Civil Suit No. 171 of 2001
  • Patel –vs- E.A. Cargo Handling Services
    [1975] EA 75
Jurisdiction invoked
Original civil jurisdiction of the court; application under Order 1XA Rule 10 of the Civil Procedure Rules to set aside ex parte judgment

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, "John Tukei Longurokoi v Geoffrey Mepro Chepshokan [2018] KEELC 3693 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 13/1/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3693/eng@2018-04-20

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