James Kiterie Alfayo v William Kipnusu & another [2019] KEELC 4365 (KLR)
The bottom line
#A Kitale court cancelled a land judgment won without a trial after finding the defendant was probably never properly served with court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons on the 1st defendant was validly effected
The process server's oral evidence contradicted his affidavits of service regarding who he met at the homestead, casting doubt on the integrity of service; service was not proved and the judgment was irregular
The court took viva voce evidence of the process server, Godfrey Masinde Sitati. He testified he met a caretaker and another female, not the defendant's mother as deponed in his affidavit of service. A further affidavit of service stated he met the defendant's mother at the borehole. These contradictions meant service could not be relied upon, so the ex parte judgment was irregular, not regular.
Whether the draft defence raises triable issues warranting setting aside the judgment
The defendant claims Plots 30 and 467 while the plaintiff claims only Plot No. 80; the issues convinced the court that justice would be better served by a hearing on the merits
The applicant averred he owns and is in possession of Plot Nos. 30 and 467 at Kitalale Settlement Scheme and was wrongly sued. The plaintiff responded that his claim concerns Plot No. 80 measuring 2.5 acres and he has no claim over Plots 30 and 467. On these competing claims the court found triable issues meriting an inter partes hearing.
Legal principles established
#- Where the integrity of service of summons is in doubt, a judgment regularly entered is rendered irregular and may be set aside
- The court's discretion to set aside ex parte judgment is wide but should be exercised in deserving cases upon genuine and compelling reasons
Court orders
#- 1.The ex-parte judgment delivered on 25/4/2018 is set aside as prayed in prayer No. 4 of the application dated 21/9/2018
- 2.All consequential orders set aside, allowing the defendant to defend the suit
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kiterie Alfayo v William Kipnusu & another [2019] KEELC 4365 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4365/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.