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ELCAllowedNot stated in the judgment· [2019] KEELC 2161 (KLR)

Daniel Kyalo Lua & another v Richard Muindi [2019] KEELC 2161 (KLR)

Environment and Land Court
26 July 2019
OAO. A. Angote
1,406 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court can set aside its own judgment automatically if the defendant was never properly served with court summons.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on the Defendant's Notice of Motion dated 14th April, 2015 seeking to set aside the court's default Judgment dated 13th March, 2015 and to be granted leave to defend the suit. The Defendant denied being served by the process-server, Andrew Kyalo Mwanzia, on 2nd April, 2013, denied owning the Hardware shop (Kanini Kaseo General Enterprises) where service allegedly occurred, and disputed any interest in Plot No. 12 Kilome Land Adjudication Section. The Plaintiffs maintained that service was properly effected and that the suit land belongs to the Estate of the late James Lua Maia, from which the Defendant purported to purchase. The court examined the process-server's affidavit and found it deficient: the note the Defendant allegedly wrote refusing service was never annexed, the time of service was not stated, and the affidavit did not explain how the process-server identified the Defendant or his shop. Service was therefore not proved, rendering the default judgment irregular. Applying the distinction between regular and irregular default judgments from James Kanyiita Nderitu vs. Marios Philotas Ghikas, the court held that an irregular judgment must be set aside ex debito justitiae as a matter of right, without inquiry into triable issues or delay, because the defendant was condemned unheard. The court set aside its Judgment of 13th March, 2015, allowed the Defendant fourteen days to file his Defence, and ordered the Plaintiffs to pay the costs of the Application.

Key legal issues

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01

Whether the Defendant was served with Summons to Enter Appearance

Holding

Service was not proved; the process-server's affidavit failed to show how he identified the Defendant or his shop, and the note allegedly written by the Defendant was not annexed

Reasoning

The process-server deponed that the Defendant wrote a note stating he bought the plot from Deon Musau, but the note was never annexed, so there was no evidence it existed. He also failed to state the time of service and did not explain how he identified the Defendant or the Hardware shop, whether he knew the Defendant before, or who identified him. Without these particulars, the affidavit could not establish that the Defendant was ever served.

p. 2
02

Whether the default Judgment of 13th March, 2015 was regular or irregular and whether it should be set aside

Holding

The judgment was irregular because the Defendant was not served; it was set aside ex debito justitiae as a matter of right, without considering triable issues or delay

Reasoning

Relying on the distinction drawn in James Kanyiita Nderitu vs. Marios Philotas Ghikas, a judgment against a defendant not served is irregular. For irregular judgments, the court has no discretion: it sets the judgment aside as of right, even on its own motion, and does not consider the merits of the intended defence or inordinate delay, because the defendant was condemned unheard. The court therefore set aside its own judgment of 13th March, 2015 and enlarged time for the Defendant to file his defence.

p. 2

Legal principles established

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  • A default judgment entered against a defendant who was not served or properly served is irregular and must be set aside ex debito justitiae as a matter of right
  • Where a default judgment is irregular, the court has no discretion to weigh triable issues or delay; it sets the judgment aside to secure the right to be heard
  • An affidavit of service must show how the process-server identified the person served; otherwise there is no proof of service

Court orders

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  1. 1.The Judgment of this court dated 13th March, 2015 is hereby set aside
  2. 2.The Defendant to file his Defence within fourteen (14) days from the date of the Ruling
  3. 3.The Plaintiffs to pay the costs of the Application

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (3)

  • Reuben Nzuve Mwangangi vs. Mukene Musau & Another
    Machakos ELC Case No. 21 of 2006
  • James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another
    (2016) eKLR
  • Onyango Oloo vs. Attorney General
    (1986 – 1989) EA 456
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; setting aside of default judgment under Order 10 Rule 11 of the Civil Procedure Rules

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, "Daniel Kyalo Lua & another v Richard Muindi [2019] KEELC 2161 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2161/eng@2019-07-26

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