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ELCDismissedNot stated in judgment· [2021] KEELC 4441 (KLR)

Kenya Agricultural and Livestock Research Organization v Kisii County & another [2021] KEELC 4441 (KLR)

Environment and Land Court
28 January 2021
JOJ. M. Onyango
1,566 words in judgment
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The bottom line

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A Kenyan court refused to overturn a default judgment because the defendant never proved improper service and offered only empty denials as a defence.

What this practically means

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Executive summary

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This was a Notice of Motion dated 31st December 2019 by the 2nd Defendant, Ibrahim Mose, seeking leave for the firm of S. Mainga & Co. Advocates to come on record after judgment, a stay of execution, setting aside of the ex-parte judgment delivered on 29th August 2019, leave to defend the suit, and an order that the suit start de novo. The application was supported by the affidavit of Ibrahim Mose and canvassed by written submissions; the Respondent filed only a List and Bundle of Authorities without submissions. The court framed four issues: whether the ex-parte judgment should be set aside, whether the Applicant had a reasonable defence raising triable issues, what consequential orders should issue, and costs. Relying on Order 10 Rule 11 of the Civil Procedure Rules and the James Kanyiita Nderitu distinction between regular and irregular default judgments, the court held that service had been proved by an Affidavit of Service showing service at the 2nd Defendant's official office, and the Applicant failed to fault it, making the judgment regular. The court then considered the draft Defence and found it to be mere denials, a sham put forth to delay justice, raising no triable issues. The Applicant's failure to explain the delay in following the proceedings also weighed against it. The court dismissed the application, allowed the ex-parte judgment to stand, and ordered costs of the application to be in the cause. Judgment delivered at Kisii on 28th January 2021 by J. M. Onyango, Judge.

Key legal issues

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01

Whether the default judgment was regular or irregular

Holding

It was regular because service at the 2nd Defendant's official office was proved by an Affidavit of Service and the Applicant did not fault it

Reasoning

The court examined the Affidavit of Service sworn by advocate Teddy Enos Ochieng Onyango showing service effected at the 2nd Defendant's official office on 9th April 2018. The Applicant bore the onus of faulting the service and did not. Absent evidence of improper service, the ex-parte judgment was regular and could only be set aside on grounds other than non-service, in the court's discretion.

p. 3
02

Whether the draft Defence raises triable issues

Holding

It does not; it consists of mere denials and is a sham intended to delay justice

Reasoning

The court scrutinised the draft Defence annexed to the application and concluded it was broadly mere denials without a reasonable defence on the merits. Since a court may set aside an ex-parte judgment where a defendant shows a reasonable defence, the absence of triable issues meant the discretion would not be exercised in the Applicant's favour.

p. 3

Legal principles established

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  • The court's discretion to set aside a regular default judgment under Order 10 Rule 11 is unfettered but guided by reasons for default, the triable issues raised, prejudice and the interests of justice
  • An irregularly obtained default judgment (where there was no proper service) is set aside ex debito justitiae as a matter of right

Court orders

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  1. 1.The ex-parte judgment delivered on 29th August 2019 stands
  2. 2.The Application dated 31st December 2019 is dismissed
  3. 3.The costs of the Application be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (8)

  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • Mbogo & Another –vs- Shah
    (1968) EA 98
  • Patel –vs- E.A. Cargo Handling services Ltd
    (1975) E.A. 75
  • Chemwolo & Another –vs- Kubende
    (1986) KLR 492
  • CMC Holdings –vs- Nzioka
    [2004] I KLR 173
  • Evans v Bartlam
    [1937] A C 473
  • Mbaki & Others vs Macharia & Another
    (2005) 2 EA 206
  • Tree Shade Motors Ltd vs Dt Dobie & Another
    (1995-1998) 1EA 324
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules

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, "Kenya Agricultural and Livestock Research Organization v Kisii County & another [2021] KEELC 4441 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4441/eng@2021-01-28

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