Salome Gathoni Muirui v Kamae Re-Settlement Project & another [2021] KEELC 551 (KLR)

Not expressly stated on the face of the judgment (land dispute; ex-parte judgment and decree)

28 October 2021

EOE. O. Obaga

473 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~2 min to read original · ~4 min brief

The bottom line

A Kenyan court cancelled a land judgment won without properly notifying the defendant, ruling that leaving court papers with a Chief is not valid service.

What this practically means

Executive summary

The 2nd Defendant/Applicant moved the court by notice of motion dated 10th May 2021 seeking stay of execution, setting aside of an ex-parte judgment delivered in November 2019 together with consequential orders, and leave to file his defence. He contended that he was never served with summons and only learned of the suit on 29th April 2021 when a copy of the decree was served on him through WhatsApp. The Plaintiff/Respondent opposed, asserting that the Applicant was duly served but simply ignored the suit. The court framed a single issue: whether there was service of summons upon the Applicant. The affidavit of service showed the process server telephoned the Applicant and then left the summons with Assistant Chief Douglas Kimani, rather than serving the Applicant personally. The court noted that the Applicant occupies and lives on the suit property, so nothing prevented personal service, and that the Respondent did not explain why the decree was served on a different phone number than the one allegedly used for service, leaving doubts about service. Holding that there was no proper service, the court set aside the ex-parte judgment and all consequential orders, granted the Applicant unconditional leave to file his defence within fourteen days, and awarded him the costs of the application. The judgment was delivered at Eldoret on 28th October 2021 by E. O. Obaga, Judge.

Key legal issues

Whether there was proper service of summons on the Applicant

Holding

There was no proper service; the ex-parte judgment and consequential orders were set aside and the Applicant granted unconditional leave to defend.

Reasoning

The process server served summons through an Assistant Chief after phoning the Applicant, rather than serving him personally even though the Applicant occupies and lives on the suit property. The Applicant's claim that he only learned of the suit upon being served with the decree by WhatsApp on a number different from the service phone was not contested, and the Respondent could not explain the use of a different phone number, leaving doubts about service.

p. 1

Legal principles established

Where a defendant is available and occupying the suit property, a process server should attempt personal service before resorting to substituted service through a third party such as an Assistant Chief.
An ex-parte judgment obtained without proper service of summons is liable to be set aside with unconditional leave to defend.

Court orders

1.The ex-parte judgment delivered on 14th November 2019 together with all consequential orders are set aside
2.The Applicant is given unconditional leave to file defence within fourteen (14) days
3.The Applicant shall have costs of the application

Jurisdiction invoked: Not stated in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Salome Gathoni Muirui v Kamae Re-Settlement Project & another [2021] KEELC 551 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/551/eng@2021-10-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.