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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 28th September, 2020)· [2021] KEELC 2762 (KLR)

Bernard Mbole Kavoo & 2 others v Lukenya Ranching and Farming Co-operative Society Limited & 3 others [2021] KEELC 2762 (KLR)

Environment and Land Court
25 June 2021
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 2nd and 4th Defendants moved the court by Notice of Motion dated 28th September, 2020 seeking to set aside the judgment of 16th November, 2018, the decree of 5th December, 2018 and consequential orders, together with an interlocutory injunction over land parcel Mavoko Town Block 3/3342. The Applicants contended they only learned of the suit on 19th September, 2020; that substituted service by newspaper advertisement was unprocedural because no Affidavit of Service by a process-server showed attempts at personal service; and that their draft Defence and Counter-claim raised triable issues. The 1st Respondent maintained that service was proper and granted by the Deputy Registrar, that the court had become functus officio, that no notice of entry of judgment was required, and that the Applicants were indolent and delayed. The court identified one issue: whether sufficient evidence existed to warrant setting aside the judgment. Relying on Shah vs Mbogo, Patel, James Kanyiita, Richard Murigu Wamai and Salaba Agencies, the court held that before leave for substituted service is granted, affidavit evidence must show personal service is impossible, and none had been filed; the Deputy Registrar ought not to have allowed substituted service. The draft Defence, which pleaded purchase from the 4th Defendant, a Sale Agreement, title and planting of trees, raised bona fide triable issues. The court allowed the 2nd Defendant's application, set aside the judgment of 16th November, 2018, directed the 2nd and 4th Defendants to file their Defence and Counter-claim within fourteen days, and ordered each party to bear their own costs.

Key legal issues

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01

Validity of substituted service and whether the judgment based on it was irregular

Holding

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

Reasoning

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.

p. 4
02

Whether the 2nd Defendant's draft Defence and Counter-claim raises triable issues

Holding

The Defence and Counter-claim raises triable issues warranting trial, justifying the exercise of discretion in the 2nd Defendant's favour

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Judgment of this court dated 16th November, 2018 is hereby set aside
  2. 2.The 2nd and 4th Defendants to file their Defence and Counter-claim within fourteen (14) days of the date of this Ruling
  3. 3.Each party to bear his/its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 15
  • Civil Procedure Rules, 2010Order 5 Rule 17
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 22 Rule 6
  • Civil Procedure Rules, 2010Order 21 Rule 3(3)
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure ActSection 99

Cases cited (14)

  • Wachira Karani vs. Bildad Wachira
    (2016) eKLR
  • James Kanyiita vs. Maros Philites
    (2016) eKLR
  • Elizabeth Kavere vs. Lilian & Another
    (2020) eKLR
  • Kaniki vs. John Njiru Njuki & Others
    (2014) eKLR
  • Kenya Commercial Bank vs. Suntra Investment Bank Ltd
    [2015] eKLR
  • Saudi Arabia Airlines Corporation vs. Premium Company Ltd
  • Isaac Awuondo vs. Surgipham Ltd & Anor
    (2011) eKLR
  • Wenendeya vs. Gaboi
    [2002] 2EA 662
  • Telkom Kenya Ltd vs. John Ochanda
    [2014] eKLR
  • Shah vs. Mbogo
    (1967) EA 116
  • Patel vs. E.A. Cargo Handling Services Ltd
    (1974) EA 75
  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • Richard Murigu Wamai vs. Attorney General & Another
    [2018] eKLR
  • Salaba Agencies Ltd & Michael Riorio
    [2015] eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, 2010 (discretion to set aside judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.