Dickson Ogunde Were v Esther Njeri Gitau, Jessee Karanja Mwangi, Joseph Kimani Gitau & Peter Macharia Mwangi [2020] KEELC 260 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment, confirming people deserve to be heard on the merits if they pay costs thrown away.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment and consequential orders should be set aside under Order 10 Rule 10 of the Civil Procedure Rules
The application was merited; the court set aside the ex-parte judgment and consequential orders and let the defendants in to defend the suit on terms as to costs thrown away and filing fees
Order 10 Rule 10 permits the court to set aside a judgment entered in default upon such terms as are just. The court held that service of process is an area where procedural lapses should not defeat justice, that the right to be heard is fundamental and permeates the justice system, and that the right of access to justice and fair hearing under Articles 48, 25(c) and 50(1) of the Constitution required that the applicants be heard on the merits rather than condemned unheard, subject to compensating the respondent with costs thrown away.
Whether the applicants were duly served with the originating summons and hearing notices
The court found that the applicants were duly served but technically failed to appear and defend the suit, which resulted in the ex-parte judgment
The respondent deposed that the applicants were served by way of advertisement in the Daily Nation Newspaper dated 24th September 2015 at page 46, supported by an affidavit of service. The applicants denied awareness of the substitute service. The court nonetheless found service effective, characterising the situation as a technical failure to appear, and proceeded on the basis that even so, procedural technicalities should not preclude the applicants from being heard on the merits.
Legal principles established
#- Where there is no service on a party, an ex-parte judgment may be set aside; the right to be heard before an adverse decision is fundamental
- A party should not suffer the penalty of not having his case heard on the merits; subject to paying costs thrown away, a party should be let in to defend the suit
Court orders
#- 1.The notice of motion dated 10th November 2019 and filed on 14th November 2019 is allowed in terms of Orders 3 and 4 sought therein
- 2.Judgment delivered on 16th day of July, 2018 is set aside together with all consequential orders arising therefrom
- 3.The defendants are given leave to file replying affidavit defence out of time and the annexed draft replying affidavit is deemed duly filed upon payment of filing fees
- 4.The applicants shall pay costs thrown away in the sum of Kshs 7,000/= to the respondent as well as the requisite filing fees in respect of the replying affidavit
- Jurisdiction invoked
- Sections 3A of the Civil Procedure Act (Cap 21) and Order 10 Rule 10, Order 22 Rule 25 and Order 51 Rule 16 of the Civil Procedure Rules, 2010; Articles 48, 25(c) and 50(1) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Ogunde Were v Esther Njeri Gitau, Jessee Karanja Mwangi, Joseph Kimani Gitau & Peter Macharia Mwangi [2020] KEELC 260 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/260/eng@2020-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.