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ELCPartially AllowedNot stated in judgment· [2019] KEELC 3169 (KLR)

Reuben Nzuve Mwangangi v Mukene Musau & another [2019] KEELC 3169 (KLR)

Environment and Land Court
24 May 2019
OAO.A. Angote
2,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos cancelled a 2008 default land judgment because the defendants were never properly served with court papers, allowing them to finally defend their case.

What this practically means

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Executive summary

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The Defendants moved the court by Notice of Motion dated 16th March, 2018 seeking to set aside an ex parte judgment of 21st October, 2008 and decree of 17th November, 2008 in respect of parcels Mbitini/Mutiswa/1878 and 1879, including eviction orders of 15th May, 2017, together with leave to file defences and preservatory restrictions. The suit originated from a Plaint filed in March 2006 by the Plaintiff, a nephew of the Defendants' late husbands, claiming family land originally registered as Mutiswa Adjudication Section No. 1149. The Defendants denied ever being served, asserting that the process-server, Jacob M. Muthenya, returned false Affidavits of Service indicating service at Yale Market and Kithatha village when their homes were at Kasioni and Mbulutini villages. The Plaintiff maintained they were served on several occasions and challenged them to produce the process-server for cross-examination. The court, applying the distinction between regular and irregular default judgments drawn from Mbogo vs. Shah and James Kanyiita Nderitu, found that the Defendants' unchallenged evidence displaced the alleged places of service, that the Plaintiff never identified them to the process-server, and that the process-server's refusal to appear for cross-examination after a court order demonstrated false Affidavits of Service. Holding the judgment irregular, the court set it aside ex debito justitiae as of right, without considering triable issues or delay. The application was allowed: the judgment, decree and consequential orders including execution were set aside; the Defendants were given fourteen days to file defences; and the Plaintiff was ordered to pay the costs.

Key legal issues

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01

Whether the Defendants were served with Summons to Enter Appearance

Holding

They were never served; the places of service in the Affidavits of Service were not their homes and the process-server refused cross-examination

Reasoning

The 1st and 2nd Defendants deponed that their homes are at Kasioni and Mbulutini villages, not Yale Market and Kithatha village as stated in the Affidavit of Service. The Plaintiff, a relative, never denied this nor claimed to have identified them to the process-server, who interchanged the homes and named strangers as identifiers. His refusal to attend for cross-examination after a court order indicated false Affidavits of Service.

p. 3
02

Whether the default judgment of 21st October, 2008 was regular or irregular

Holding

It was irregular because the Defendants were never served, and it must be set aside as of right

Reasoning

Applying James Kanyiita Nderitu, a judgment entered against a defendant not served is irregular and set aside ex debito justitiae; the court need not consider triable issues or delay. Since service failed, the judgment falls in the irregular category and the Defendants are entitled to defend unconditionally.

p. 3

Legal principles established

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  • A default judgment entered against a defendant not served or improperly served is irregular and must be set aside ex debito justitiae as a matter of right

Court orders

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  1. 1.The Ex parte Judgment dated 21st October, 2008 and the decree dated 17th November, 2008 and all consequential orders in respect of parcels Mbitini/Mutiswa/1878 and 1879, including execution thereof, set aside
  2. 2.The Defendants have leave to file their respective Defences to the suit within fourteen (14) days of the Ruling
  3. 3.The Plaintiff to pay the costs of the Application

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (3)

  • Mbogo vs. Shah
    (1968) EA 93
  • James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another
    (2016) eKLR
  • Onyango Oloo vs. Attorney General
    (1986 – 1989) EA 456
Jurisdiction invoked
Inherent discretion to set aside default judgment under the Civil Procedure Rules (Order 10 Rule 11 referred to in the judgment)

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, "Reuben Nzuve Mwangangi v Mukene Musau & another [2019] KEELC 3169 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3169/eng@2019-05-24

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