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ELCAllowedCivil Suit No 30 of 2016· [2018] KEELC 3890 (KLR)

Janeffer Chebii Kimetto (Suing as the personal representative of the estate of Jonah Kipkoske arap Chumo v Board of Governors Chebwagan Youth Polytechnic [2018] KEELC 3890 (KLR)

Environment and Land Court (as constituted at Kericho)
16 March 2018
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside orders sending five board members to civil jail because they were never properly served with the court papers.

What this practically means

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Executive summary

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This ruling by J.M. Onyango, Judge, delivered at Kericho on 16th March 2018, determined the respondents' Notice of Motion dated 25th July 2017 brought under Order 45 Rules 1 and 2 of the Civil Procedure Rules. The applicants, members of the Board of Governors of Chebwagan Youth Polytechnic (some since retired), sought review and setting aside of the court's orders of 12th July 2017 committing them to three months in civil jail, and leave to file a defence out of time. They contended they were never served with summons to enter appearance or the order; that construction on the suit property was a project of the County Government of Kericho over which they had no supervisory role; and that the plaintiff had been compensated and had no proprietary interest. The plaintiff opposed, maintaining the applicants were served with the injunction order of 2nd August 2017. The court framed three issues: whether the review threshold was met, whether leave to file a defence out of time should issue, and costs. Relying on Aviation Cargo Support Limited v St. Mark Freight Services Limited and Kamji Naran v Velji Ramji, the court found that although an affidavit of service indicated Rev. Kenneth Rotich was served as Chairman, he had resigned from the Board in 2010, and the order had been served only on the Secretary, not each Board member; service was therefore improper. Where service was not effected, the court had no discretion but to set aside the order. The committal to civil jail was set aside, the defendant was granted 14 days to file its defence out of time, and costs of the application were made costs in the cause.

Key legal issues

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01

Whether the applicants met the threshold for review under Order 45(1) of the Civil Procedure Rules

Holding

Review was warranted because service of the summons and the committal order was not properly effected on the applicants; the person served (Rev. Kenneth Rotich) had resigned from the Board in 2010 and the order was served only on the Secretary, not each Board member.

Reasoning

The court applied Order 45(1) allowing review on discovery of new and important matter. Although an affidavit of service indicated Rev. Kenneth Rotich was served as Chairman, he had resigned in 2010 and made no decisions for the defendant; the order was served only on Geoffrey Kemei, the Secretary, and not on each Board member. The court therefore found service improper, justifying review and setting aside the committal to civil jail.

p. 2
02

Whether the defendant should be granted leave to file its defence out of time

Holding

Leave was granted, the court exercising its judicious discretion in favour of the defendant given the defective service.

Reasoning

Relying on Aviation Cargo Support Limited v St. Mark Freight Services Limited, the court noted that extension of time is discretionary and must be exercised judicially to do justice, each case on its own merits. Because service was defective, the defendant was deprived of the opportunity to defend, and leave to file a defence within 14 days was granted.

p. 2

Legal principles established

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  • Where service of summons or an order was not properly effected, the court has no discretion but to set aside the judgment or order
  • The court has a wide discretion to extend time for filing a defence, provided it is exercised judiciously

Court orders

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  1. 1.The order committing Pastor Kenneth Rotich, Geoffrey Koros, Andrew Bii, Zipporah Soi and Geoffrey Kemei to civil jail be set aside
  2. 2.The defendant be and is hereby granted leave to file its defence out of time, to be filed within 14 days from the date of the ruling
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1 and 2
  • Civil Procedure RulesOrder 45(1)

Cases cited (2)

  • Aviation Cargo Support Limited V St. Mark Freight Services Limited
    (2014) eKLR
  • Kamji Naran V Velji Ramji
    1954 EACA 20
Jurisdiction invoked
Order 45 Rules 1 and 2 of the Civil Procedure Rules (review jurisdiction of the court that made the order)

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, "Janeffer Chebii Kimetto (Suing as the personal representative of the estate of Jonah Kipkoske arap Chumo v Board of Governors Chebwagan Youth Polytechnic [2018] KEELC 3890 (KLR)", Case Analysis (2018). Civil Suit No 30 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3890/eng@2018-03-16

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