Mukunya Mugo ‘A’ & another v Elizabeth Mugure Mukunya [2021] KEELC 3700 (KLR)
The bottom line
#A Thika court refused to cancel an ex parte eviction judgment immediately but ordered the process server to be cross-examined, giving the defendant a path to challenge service.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocates were properly on record under Order 9 Rules 7 and 9
The Preliminary Objection failed; Order 9 Rule 9 does not apply to a party who did not participate in ex parte proceedings, and Gitamo Onsombi & Co. Advocates were properly on record
The court held that Order 9 Rule 9 protects advocates from mischievous clients who sack them after judgment, and applies only where a party was represented and wishes to change advocates after judgment. Since the Defendant did not participate in the ex parte proceedings, only a Notice of Appointment under Order 9 Rule 7 was required. The court followed Olga Sewe J in K. Rep Bank Ltd v Segment Distributors Ltd and Radido J in Kazungu Ngari Yaa. Section 34(2) of the Advocates Act preserved validity of documents drawn without a practising certificate.
Whether the process server should be summoned for cross-examination
The court declined to summon the process server on the papers as filed, finding the affidavit of service detailed and unrebutted
Order 6 Rule 16 permits the court to call a process server where service is alleged to be improper. The court found the affidavit of service set out how the server knew the Defendant, how he was introduced, the time and purpose of the visit, and that the Defendant did not point out what was untrue. However, the court allowed the application in terms of prayer 3 which sought the summoning of the process server - an apparent internal tension resolved by allowing cross-examination while noting it would otherwise waste judicial time.
Whether the ex parte judgment of 11th December 2019 should be set aside
The judgment was not set aside outright; the court held the Defendant should have her day in court given the allegations of improper service, res judicata and the gravity of eviction
Guided by Order 12 Rule 7 and Order 51 Rule 15, the court exercised its discretion noting there was prima facie evidence of service but also probable cause to believe the Defendant may or may not have been served. The suit involved eviction and res judicata allegations, and the draft defence raised triable issues including fraud. There was no inordinate delay. The court prioritised hearing the matter on merit over setting aside, allowing prayer 3 only.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules does not apply where the party wishing to come on record after an ex parte judgment was not a party represented in the ex parte proceedings; only a Notice of Appointment under Order 9 Rule 7 is required
- The absence of a valid practising certificate does not affect the validity of legal documents drawn by an advocate
- A defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue
Court orders
#- 1.The Notice of Preliminary Objection dated 22nd May 2020 is dismissed entirely with costs being in the cause
- 2.The Notice of Motion Application dated 6th February 2020 is allowed in terms of prayer 3 only - the court process server David Njoroge Mburu to be summoned for cross-examination on his affidavit of service sworn on 9th July 2019
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 159(2) of the Constitution 2010, Section 3A of the Civil Procedure Act and Orders 10, 22 and 53 Rule 3 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukunya Mugo ‘A’ & another v Elizabeth Mugure Mukunya [2021] KEELC 3700 (KLR)", Case Analysis (2021). ELC No. 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3700/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.