Martin Guya Ouko v Aguga Adundo & 2 others [2019] KEELC 1863 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an eviction judgment because the lawsuit papers were never properly served on the homeowner.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons and pleadings was effected on the 3rd defendant
Service was not properly proved; the process server's affidavits did not comply with Order 5 rule 15(1) as they failed to indicate the time of service and identifying description of the person served
The process server was examined on oath by order of the court and admitted in cross-examination that he met the 3rd defendant among other people at Langas estate, that this should have been noted in his affidavit, and that he did not indicate the time of service. Following Saidi Azubedi, the court agreed the affidavits contravened Order 5 rule 15(1), so the earlier conclusion that the defendants were served could not stand.
Whether the interlocutory judgment, ex-parte judgment of 29th May 2015 and consequential orders (including eviction orders) should be set aside
Yes; the judgment rendered was technical and not substantive and had to be set aside in the interest of justice, with the applicant granted leave to defend
Under Order 10 rule 11 the court has discretion to set aside a default judgment on such terms as are just, considering whether the intended defence raises triable issues and the interest of justice. Where there is no proper service, the court must set aside the ex-parte judgment. Relying on Chemwolo, CMC Holdings, Kanyiita Nderitu, Baiywo and the constitutional guarantees in Articles 23(c), 50(1) and 159(2)(d), the court held that no procedural cock-ups should deter it, balancing divergent interests since a technical judgment is not the best judgment.
Legal principles established
#- An affidavit of service must comply with Order 5 rule 15(1) of the Civil Procedure Rules, stating the time, manner, place and identifying particulars of service; affidavits that fail to do so are defective
- Where there has been no proper service upon a defendant, the court ought to set aside the ex-parte judgment in the interest of justice
- The court has an unfettered discretion under Order 10 rule 11 to set aside a default judgment upon such terms as are just
Court orders
#- 1.The interlocutory judgment entered on 4th September 2013, judgment and decree made on 29th May 2015 together with all consequential proceedings and orders set aside
- 2.Unconditional leave granted to the 3rd defendant to file her replying affidavit out of time
- 3.The draft replying affidavit sworn on 17th May 2017 deemed filed within time and to form part of the court record, to be served on the plaintiff/respondent's counsel within thirty (30) days
- 4.Throw away costs of Kshs. 10,000/= borne by the applicant and paid to the respondent's counsel on or before the next date for pre-trial directions
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Constitution and the Civil Procedure Rules, 2010 (Orders 5, 10 and 51); Articles 23(c), 50(1) and 159(2)(d) of the Constitution of Kenya, 2010 relied upon
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Guya Ouko v Aguga Adundo & 2 others [2019] KEELC 1863 (KLR)", Case Analysis (2019). Not stated on the face of the judgment (suit property West Kasipul/Kodera/Karabach/390). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1863/eng@2019-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.