Savannah Farms Limited v Mutheu Kyule & 3 others [2020] KEELC 2255 (KLR)
The bottom line
#A Kenyan land owner lost her bid to overturn a default eviction judgment because she couldn't prove she was never served with court summons.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant was served with the Summons to Enter Appearance
The court found that service was effected despite the process server referring to the 1st Defendant as 'he'; the error was a typographical error and the Defendant did not discharge her burden of proving improper service
The Affidavit of Service showed summons served on all defendants residing in the same locality on 9th March, 2015. The Defendant did not invoke Order 5 Rule 16 to cross-examine the process server, nor complain when evicted pursuant to the judgment in 2017. A gender error in the affidavit was insufficient to displace the presumption of regular service.
Whether the draft defence raises a triable issue justifying setting aside the ex parte judgment
The draft defence is a mere denial and a sham; it does not raise any triable issue
Although the 1st Defendant claimed occupation since 1960, she annexed no evidence such as photographs. She did not address the Plaintiff's registration as proprietor on 2nd July, 2008 nor seek cancellation of the title. Following Patel and Tree Shade Motors, a regular judgment will not be set aside absent a defence raising a triable issue.
Whether the pendency of Machakos ELC No. 13 of 2017 over the same property justified setting aside the judgment
No; no evidence showed the same parcel was litigated in that suit, the Plaintiff was not a party to it, and that suit was filed after this suit
The Applicant failed to demonstrate a nexus between ELC No. 13 of 2017 and this suit. The Plaintiff was not a party to the other case, and since this suit predated it, the existence of the subsequent suit could not be a ground for setting aside the judgment already entered.
Legal principles established
#- Where there is an Affidavit of Service there is a presumption of service, and a party alleging improper service bears the burden of proof, ordinarily by cross-examining the process server under Order 5 Rule 16
- Where a defendant was never served with summons to enter appearance, a default judgment should be set aside ex debito justitiae
- A judgment cannot be set aside merely because a subsequent suit over the same subject matter is pending
Court orders
#- 1.The 1st Defendant's Application dated 17th April, 2019 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction under Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Savannah Farms Limited v Mutheu Kyule & 3 others [2020] KEELC 2255 (KLR)", Case Analysis (2020). Machakos ELC Case (number not stated in ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2255/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.