Njoroge v Ngeruro & another (Environment & Land Case E002 of 2021) [2022] KEELC 2677 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment against a landowner because the other side couldn't prove he was properly served with court papers.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent/Applicant was served with the Originating Summons
The court found service was not proved; the process server was never availed for cross-examination despite the Applicant's request, and no evidence of service beyond the affidavit was filed
The affidavit of service alleged service upon the applicant's mother and son, but the deponent was not put on the stand to be cross-examined as the applicant requested. The court noted the process server did not return evidence of service to court as required by Order 10 rule 2, and that an affidavit of service alone is not evidence of service. The applicant was therefore given the benefit of the doubt.
Whether the interlocutory judgment of September 14, 2021 should be set aside
Yes - the judgment was irregular because the applicant was not properly served, and his right to a fair hearing under Article 50 was infringed; it was set aside entirely
Having found no proper service, the court held that the resulting default judgment was a nullity liable to be set aside ex debito justitiae, not as an exercise of discretion. The right to fair hearing under Article 50 of the Constitution reinforced this conclusion. Consequently, any execution steps taken pursuant to that judgment could not stand, and the caution withdrawn pursuant to the judgment was reinstated.
Principles governing setting aside of interlocutory/default judgment under Order 10 rule 11
The discretion to set aside is wide but must be exercised judiciously, considering service, delay, prejudice, defence on merits, and that denying a hearing is a last resort
The court restated the settled principles from Shah v Mbogo and related authorities: the discretion exists to avoid injustice from accident, inadvertence or excusable mistake, but will not assist a party who deliberately obstructs or delays justice. The court must consider reasons for default, delay and prejudice, whether costs can compensate the plaintiff, and the conduct of the parties, bearing in mind that denying a hearing should be the last resort.
Legal principles established
#- An order or judgment made without service of summons to enter appearance is a nullity which must be set aside ex debito justitiae
- An affidavit of service alone is not evidence of service of process; the process server's affidavit must be testable, including by cross-examination
Court orders
#- 1.The Judgment of the Court entered on September 14, 2021 be and is hereby set aside
- 2.The Replying Affidavit dated April 19, 2022 and filed April 20, 2022 in response to the Originating Summons be and is hereby deemed to be properly filed
- 3.The Caution placed over LR Loc 8/kionjoine/1082 and withdrawn by the Land Registrar via court order be and is hereby reinstated
- 4.The Originating Summons against the 2nd Respondent be set down for hearing within 60 days
- 5.The costs of the applications shall be in the cause
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution and Order 10 rule 11 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Ngeruro & another (Environment & Land Case E002 of 2021) [2022] KEELC 2677 (KLR)", Case Analysis (2022). Not stated in the judgment (Originating Summons dated April 8, 2021, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2677/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.