Mosonik Arap Katam v Kiplangat Arap Digira [2022] KEELC 1386 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether service of summons upon the defendant was proper
Service was regular; the affidavit of service sworn by Wilson C. Kimeto showed personal service on 18th September 2018, and the defendant never applied to cross-examine the process server
The court relied on the process server's affidavit of service showing service at Sigowet village on 18th September 2018 at 9.00am. The defendant denied service but did not seek to cross-examine the process server before arguing the application, so no material impeached the service. Consequently service was regular.
Whether the ex parte judgment was regularly entered
Since service was regular, the default judgment was regularly entered and could only be set aside in the exercise of the court's discretion
Applying the Malindi Court of Appeal's distinction between regular and irregular default judgments, the court found service proper and thus the judgment regular. The burden shifted to the defendant to lay discretionary factors, which he failed to do, not even attaching the draft defence alluded to in prayer 4.
Whether the plaintiff's non-disclosure of a pending related suit warranted setting aside
Yes - the plaintiff was obliged to disclose Narok CMCC No. 116 of 2018 involving the same parties, and his failure amounted to an abuse of process
The court noted the subordinate court case between the same parties was filed on 12th July 2018, before the Originating Summons filed on 16th August 2018. Non-disclosure of that pending suit was an abuse of court process, and on that ground alone the court exercised its discretion in the defendant's favour.
Legal principles established
#- A regularly entered default judgment may only be set aside in the court's unfettered discretion, considering reasons for default, delay, triable issues and prejudice; an irregularly entered one is set aside ex debito justitiae as of right
- A defendant who disputes service must apply to cross-examine the process server before challenging service on an application
- Failure to disclose a pending suit between the same parties is an abuse of court process
Court orders
#- 1.The ex parte judgement and the consequential decree on record against the Defendant/Applicant together with all other consequential and subsequent orders, notices and other process arising therefrom be reviewed, varied discharged and or set aside
- 2.The defendant/applicant be granted leave to file and serve his Memorandum of Appearance, replying affidavit and statement of defence and counter claim out of time, with the replying affidavit, draft statement of defence and counter claim deemed properly filed and served subject to payment of requisite court fees
- 3.Costs of the application shall abide the outcome of the substantive suit
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 10 Rules 4, 10 and 11, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mosonik Arap Katam v Kiplangat Arap Digira [2022] KEELC 1386 (KLR)", Case Analysis (2022). High Court Civil Suit No. 56 of 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1386/eng@2022-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.