Bernard Mbole Kavoo & 2 others v Lukenya Ranching and Farming Co-operative Society Limited & 3 others [2021] KEELC 2762 (KLR)
The bottom line
#A Kenyan court set aside a land judgment won through newspaper service, ruling substituted service needs proof personal service was impossible.
What this practically means
#Executive summary
#Key legal issues
#Validity of substituted service and whether the judgment based on it was irregular
The leave for substituted service ought not to have been granted because no Affidavit of Service or non-service by a process-server demonstrated efforts to trace the Defendants
Order 5 Rule 15 requires an Affidavit of Service, and Order 5 Rule 17 requires the court to be satisfied that summons cannot be served personally before ordering substituted service. The affidavit supporting the application for substituted service merely stated counsel's inability to serve without detailing any attempts, so the Deputy Registrar should not have allowed the application, rendering the ex parte judgment irregular.
Whether the 2nd Defendant's draft Defence and Counter-claim raises triable issues
The Defence and Counter-claim raises triable issues warranting trial, justifying the exercise of discretion in the 2nd Defendant's favour
The 2nd Defendant pleaded purchase of the suit property from the 4th Defendant, a Sale Agreement, issuance of a Title Deed and planting of trees on the land. Following Salaba Agencies and Shah vs Mbogo, the court held these are bona fide triable issues and that it is possible the 2nd Defendant never saw the newspaper advertisement, so the discretion to set aside should be exercised in his favour.
Legal principles established
#- Before a court grants leave for substituted service, it must be satisfied by affidavit evidence that personal service is not possible
- A bona fide triable issue is any matter raised by the Defendant warranting further interrogation at a full trial, not one that must succeed
Court orders
#- 1.The Judgment of this court dated 16th November, 2018 is hereby set aside
- 2.The 2nd and 4th Defendants to file their Defence and Counter-claim within fourteen (14) days of the date of this Ruling
- 3.Each party to bear his/its own costs
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules, 2010 (discretion to set aside judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Mbole Kavoo & 2 others v Lukenya Ranching and Farming Co-operative Society Limited & 3 others [2021] KEELC 2762 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 28th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2762/eng@2021-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.