Michael ole Dikirr v Tananko ole Kwena & 3 others [2019] KEELC 443 (KLR)
The bottom line
#A Kajiado court refused to undo a default land judgment because the defendants waited too long, didn't prove they were never served, and never showed a real defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 7th February 2018 should be set aside under Order 10 rule 11
No. The Defendants were duly served per the affidavit of service, which they never tested by cross-examining the process server; the application was brought after unexplained delay and without a draft Statement of Defence raising triable issues; the application was dismissed with costs.
Order 10 rule 11 confers discretion to set aside a judgment on terms as are just. Following the Court of Appeal in Shadrack Arap Baiywo v Bodi Bach, the process server's affidavit raised a presumption of service which the Defendants failed to displace, having never sought leave to cross-examine him. Following K-Rep Bank v Segment Distributors, the absence of an exhibited draft defence meant no triable issues were demonstrated. Delay was unexplained and the Plaintiff had already executed the decree. The court associated itself with the cited decisions and dismissed the motion.
Legal principles established
#- There is a presumption of service as stated in the process server's affidavit and the burden lies on the party questioning it to show the return is incorrect; denial of service warrants cross-examination of the process server.
- The court's discretion to set aside an ex parte judgment is wide but must be exercised justly, and a regular judgment will not usually be set aside unless there is a defence raising a triable issue.
Court orders
#- 1.The Notice of Motion application dated 11th June, 2018 is dismissed with costs to the Plaintiff
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A & 63 of the Civil Procedure Act; Order 50 rule 1 and Order 10 rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael ole Dikirr v Tananko ole Kwena & 3 others [2019] KEELC 443 (KLR)", Case Analysis (2019). Not stated in the judgment extract (ELC suit, Kajiado; Originating Summons filed 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/443/eng@2019-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.