Florence Nasimiyu Wekesa v Ambrose Mulongo Kasawa; Moses Nambafu Wekesa (Applicant) [2020] KEELC 3488 (KLR)
The bottom line
#The High Court in Bungoma refused to set aside a default judgment because the defendant waited a year without explanation, and his property had already been sold.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons was proper
Service was proper; Muchemi J had been satisfied on the process server's affidavit and the court saw no reason to find otherwise
The process server Kisembe Kiliswa deponed to serving the defendant at Bwani Area of Trans-Nzoia at 10:45 am on 3rd July 2006 after being pointed out by the plaintiff. The defendant merely denied service without showing he was not at that place at that time. The judge who tried the suit, Muchemi J, had found service proper, and this court saw no basis to depart from that finding.
Whether the ex-parte judgment should be set aside despite inordinate delay and overtaken events
Application dismissed; the one-year unexplained delay, the sale of the attached properties, and the prejudice to the plaintiff made it improper to set aside the seven-year-old judgment
The application was filed one year after judgment with no explanation for the delay; the defendant did not state when he learnt of the judgment. Attached properties had been sold on 5th July 2011 and part of proceeds remitted to the plaintiff. Granting the orders would prejudice the plaintiff and amount to acting in vain.
Legal principles established
#- Where there was no proper service, an ex-parte judgment will be set aside as a matter of course (ex debito justitiae); where service was proper, the court may still set aside a regular judgment if satisfied there is a defence on the merits raising triable issues
- The discretion to set aside a default judgment must be exercised judiciously, considering all facts prior to and subsequent to the judgment, and courts should not act in vain
Court orders
#- 1.The Notice of Motion dated 6th July 2011 is dismissed with no orders as to costs
- Jurisdiction invoked
- Original civil suit; inherent jurisdiction of the court to set aside ex-parte judgments (civil procedure discretion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Nasimiyu Wekesa v Ambrose Mulongo Kasawa; Moses Nambafu Wekesa (Applicant) [2020] KEELC 3488 (KLR)", Case Analysis (2020). Bungoma PMCC (suit filed 7th June 2006 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3488/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.