Esther Nanjala Ndalila v Patrick Wafula Kati & another [2019] KEELC 3112 (KLR)
The bottom line
#The High Court set aside a default judgment because the defendants were served with court summons but never received the plaintiff's claim document.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment was irregular for want of service of the Plaint
The judgment was irregular and had to be set aside ex debito justitiae because the affidavit of service showed the Plaint was not among the documents served, contrary to Order 5 Rule 1(3)
The court distinguished regular from irregular default judgments. Although the process server served Summons and other documents, his own affidavit showed the Plaint was not served, breaching the mandatory requirement of Order 5 Rule 1(3). A party cannot be condemned unheard; where service is irregular the court has no discretion and must set aside the judgment as a matter of law, even on its own motion, without considering triable issues or delay.
What factors apply where a regular judgment is sought to be set aside
Where service is proper, setting aside is discretionary, considering reasons for default, delay, triable issues, prejudice and interests of justice
Drawing on James Kanyita Nderitu, Kingsway Tyres, Shah v Mbogo and Patel v EA Cargo Handling, the court summarised that a regular default judgment may be set aside in the court's unfettered discretion on reasonable terms, weighing the reason for failure to defend, time elapsed, whether the defence raises triable issues, respective prejudice and the interests of justice. That discretionary route was not engaged here because service was irregular.
Legal principles established
#- An irregular default judgment (entered against a defendant not served or improperly served) must be set aside as of right, ex debito justitiae, without consideration of triable issues or delay
- Every Summons to Enter Appearance must be accompanied by a copy of the Plaint
- A process server's affidavit is conclusive of the facts of what was served
Court orders
#- 1.The defendants' Notice of Motion dated 26th July 2018 is allowed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Nanjala Ndalila v Patrick Wafula Kati & another [2019] KEELC 3112 (KLR)", Case Analysis (2019). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3112/eng@2019-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.