Yerine H. Maghere & 2 others v Samuel Joshua Hamena [2018] KEELC 3754 (KLR)
The bottom line
#A Malindi court set aside a default judgment because the plaintiff never properly served the defendant, allowing him to finally defend his land case.
What this practically means
#Executive summary
#Key legal issues
#Validity of substituted service under Order 5 Rules 12 and 14
Affixing summons to a wall was improper as there was no proof of due diligence or refusal of service; service was ineffective.
The process server attached the summons to the premises' wall after being told the defendant was hiding. The court found the affidavit did not show how the summons was affixed, nor that the server had attempted to find the defendant as required by Order 5 Rule 12, and affixing under Rule 14 applies only where the defendant refuses service or cannot be found after due and reasonable diligence. Service was therefore not properly effected, supporting setting aside the default judgment.
Whether the Defendant has an arguable defence warranting reinstatement
The Defendant had occupied a portion of the disputed land since 1991, so it was fair and in the interest of justice to allow him to file his defence.
The court compared the plaint and the draft defence and observed that both showed the Defendant had been in occupation of a portion of the disputed parcel since 1991. Combined with the finding of defective service and the fact that only interlocutory judgment had been entered with the plaintiff yet to testify, the court exercised its discretion under Order 10 Rule 11 to allow the defence out of time in the interest of justice.
Legal principles established
#- The court's discretion to set aside an ex-parte judgment is wide and its main concern is to do justice to the parties
- The discretion is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructed justice
Court orders
#- 1.The application dated 20th March 2017 is allowed; the ex-parte judgment is set aside and the Defendant granted leave to defend
- 2.The Defendant is granted 14 days to file his Statement of Defence, Witness Statement and List of Documents
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yerine H. Maghere & 2 others v Samuel Joshua Hamena [2018] KEELC 3754 (KLR)", Case Analysis (2018). Malindi CMCC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3754/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.