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ELCAllowedNot stated in the excerpt (Malindi ELC suit over plot at Majengo Mapya, Malindi)· [2022] KEELC 3908 (KLR)

Ahmed v Ahmed (Environment & Land Case 216 of 2016) [2022] KEELC 3908 (KLR)

Environment and Land Court
12 July 2022
MOM.A. Odeny
1,764 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a land judgment won without properly serving the defendant, allowing him to finally defend his case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determines the defendant's Notice of Motion dated July 27, 2021 seeking to set aside an ex-parte judgment delivered on January 18, 2019 and the decree issued on January 28, 2019, in a land dispute between brothers over a plot at Majengo Mapya, Malindi. The defendant asserted he was never served with summons and only learnt of the suit when served with an eviction application on June 15, 2021; he sought leave to defend the suit on the basis that he was beneficial owner of the property and that his defence raised triable issues. The plaintiff maintained the defendant was duly served and that the defence raised no triable issues. The court cross-examined the two process servers, both of whom admitted they were not licensed to serve court processes at the material time and did not indicate the time of service, and the affidavit of service failed to comply with Order 5 rule 15(1). Applying Order 10 rule 11 and the Court of Appeal's decision in James Kanyiita Nderitu, the court held that a judgment entered without service is a nullity to be set aside ex debito justiciae. The application was allowed as prayed: the judgment and decree were set aside, leave to defend was granted with the draft defence deemed filed upon payment of filing fees, and the suit was to start afresh.

Key legal issues

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01

Whether the defendant was duly served with summons to enter appearance

Holding

Service was not proved; both process servers were unlicensed at the time of alleged service and the affidavit of service did not comply with Order 5 rule 15(1)

Reasoning

The court cross-examined the two process servers, who admitted they were not licensed to serve court processes at the material time and did not indicate the time of service. The affidavit of service sworn by Samson N. Nyangena failed to state the name of the person identifying the defendant and the time of service, contrary to Order 5 rule 15(1), contravening the prescribed procedure for proving service.

p. 3
02

Whether the ex-parte judgment and decree should be set aside

Holding

Yes; a judgment entered without service is a nullity and the court exercised its discretion to set it aside under Order 10 rule 11

Reasoning

Since service was defective, the default judgment was irregularly entered. Following James Kanyiita Nderitu, an irregularly obtained default judgment must be set aside ex debito justiciae rather than on the discretionary grounds applicable to regular default judgments. The judge heard the process servers' evidence of non-compliance and exercised discretion in the applicant's favour, allowing the application as prayed.

p. 4

Legal principles established

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  • An order made without service of summons to enter appearance is a nullity which must be set aside ex debito justiciae
  • A default judgment entered without proper service is irregular and may be set aside as of right

Court orders

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  1. 1.The ex-parte judgment dated January 18, 2019 and the decree issued on January 28, 2019 are set aside
  2. 2.The defendant is granted leave to defend the suit, with the draft defence deemed properly on record upon payment of requisite filing fees
  3. 3.The suit to start afresh and/or de novo
  4. 4.Stay of execution of the decree given on January 18, 2019 and issued on January 28, 2019
  5. 5.Costs of the application provided for (application allowed as prayed)
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules, 2010 (discretion to set aside default 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, "Ahmed v Ahmed (Environment & Land Case 216 of 2016) [2022] KEELC 3908 (KLR)", Case Analysis (2022). Not stated in the excerpt (Malindi ELC suit over plot at Majengo Mapya, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3908/eng@2022-07-12

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