Keroka Highway Service Station Ltd v Maurice Odongo Ogot [2020] KEELC 1803 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether service of the hearing notice on the defendant was proved
Service was duly effected; the defendant failed to discharge the burden of proving the process server's affidavit was false.
The affidavit of service sworn by Charles M. Kangethe stated that service was effected at the defendant's house on 19th May, 2017. The defendant's bare assertion that neither he nor his wife was at home, unsupported by evidence and without summoning the process server for cross-examination, could not rebut the qualified presumption in favour of the process server. The court's record also showed it had satisfied itself on service before hearing.
Whether the defendant demonstrated a defence on the merits
The defendant failed to show a triable issue, as he produced no evidence of payments to N.S.S.F for the suit property since 2009 and owed Kshs. 1,001,138.29 as at 2011.
The defendant attached an N.S.S.F statement as at 5th July, 2011 showing arrears of Kshs. 1,001,138.29. The suit was filed about three years later, and the defendant did not demonstrate any payments between 2011 and 2014. In the absence of evidence that he was paying for the suit property, the court was not convinced that the repossession and sale to the plaintiff was illegal.
Whether the court should nonetheless exercise its discretion to set aside the judgment
In the interest of justice, and given that what is in dispute is the defendant's residential home, the court conditionally set aside the judgment subject to payment of thrown away costs and security.
Despite finding the judgment regular and the defence weak, the court invoked the constitutional protection of the right to a hearing and the broad equity approach in Chemwolo, holding that no default that can be put right by payment of costs should deprive a party of a hearing. No irreversible prejudice to the plaintiff was shown; costs and security adequately protected it.
Legal principles established
#- Where service is disputed, the burden lies on the party questioning service to show the process server's return is incorrect; a mere allegation cannot rebut the presumption in favour of the process server.
- A judgment entered after proper service is a regular judgment, which the court can only set aside for good reason.
- Judicial discretion must be exercised judiciously and not capriciously, on legal principles and in the circumstances of each case.
Court orders
#- 1.The defendant's application dated 5th December, 2018 allowed in terms of prayers (c) and (d)
- 2.The judgment delivered on 20th September, 2017 set aside and the suit ordered to proceed to a fresh hearing
- 3.The defendant to pay the plaintiff thrown away costs and costs of the application assessed at Kshs. 50,000/= not later than 30 days from the date of the ruling
- 4.The defendant to deposit in court Kshs. 500,000/= within 30 days as security for the loss the plaintiff is likely to incur if the defendant loses the case at retrial
- 5.In default of compliance with the conditions, the orders setting aside the judgment to stand set aside and the judgment of 20th September, 2017 reinstated without further reference to the court, with liberty to the plaintiff to execute
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules (discretionary power to set aside judgment entered in the absence of a party)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keroka Highway Service Station Ltd v Maurice Odongo Ogot [2020] KEELC 1803 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1803/eng@2020-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.