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ELCAllowed(not stated in judgment)· [2019] KEELC 3112 (KLR)

Esther Nanjala Ndalila v Patrick Wafula Kati & another [2019] KEELC 3112 (KLR)

High Court of Kenya
30 May 2019
2,339 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff sued the defendants seeking their eviction from Plot No. 7 Sikosi Market, claiming they had illegally invaded and developed land she had purchased from their late father, Nicholas Kati. Interlocutory judgment was entered by the Deputy Registrar on 22nd February 2017 after the process server, Caleb Sasita, filed an affidavit of service, and final judgment was entered on formal proof before Mukunya J on 10th January 2018. The defendants then moved by Notice of Motion dated 26th July 2018 under Order 10 Rule 11 of the Civil Procedure Rules and related provisions, seeking to set aside the interlocutory judgment, leave to file a defence out of time, and to have their draft defence and counter-claim deemed properly on record. They asserted they were never served, were in occupation, and had a good defence including a claim that the plaintiff's registration was fraudulently obtained. The plaintiff opposed, maintaining service was effected and acknowledged, the plot was duly purchased and registered in her name, and the application was an abuse of process. Reviewing James Kanyita Nderitu, Kingsway Tyres, Shah v Mbogo and Patel v EA Cargo Handling, Olao J restated the regular/irregular judgment distinction. Examining the process server's own affidavit, the court found the Plaint was not among the documents served, breaching the mandatory requirement of Order 5 Rule 1(3) that every Summons be accompanied by a copy of the Plaint. The judgment was therefore irregular and had to be set aside ex debito justitiae, as a matter of right, without regard to delay or triable issues. The Notice of Motion dated 26th July 2018 was allowed with costs in the cause.

Key legal issues

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01

Whether the judgment was irregular for want of service of the Plaint

Holding

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)

Reasoning

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.

p. 3
02

What factors apply where a regular judgment is sought to be set aside

Holding

Where service is proper, setting aside is discretionary, considering reasons for default, delay, triable issues, prejudice and interests of justice

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The defendants' Notice of Motion dated 26th July 2018 is allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 5 Rule 1(1) and (3)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (4)

  • James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another
    2016 eKLR
  • Kingsway Tyres and Automart v Rafiki Enterprises Ltd
    C.A Civil Appeal No 220 of 1995
  • Shah v Mbogo & Another
    1967 E.A 116
  • Patel v E.A Cargo Handling Services Ltd
    1974 E.A
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

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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, "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.