Ndolo v City Council of Nairobi & another (Environment & Land Case 1295 of 2013) [2023] KEELC 856 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of substituted service
Service by advertisement in the Standard Newspaper on November 4, 2014, pursuant to orders of September 26, 2014, constituted due and proper service under Order 5 rule 17(2) of the Civil Procedure Rules, 2010; the applicant did not controvert the plaintiff's averments on service.
The court reproduced Order 5 rule 17(2), which deems substituted service under a court order as effectual as personal service. The applicant filed no further affidavit to challenge the plaintiff's account of substituted service, so the issue was uncontested. The plea that she does not buy newspapers could not displace the deeming effect of lawful substituted service.
Regularity of the default judgment and exercise of discretion to set aside
The judgment was regular because the defendant was duly served; setting it aside lay in the court's discretion, which required sufficient cause. The roughly two-year delay was unexplained and the applicant was indolent, so discretion was refused.
Relying on James Kanyita Nderitu, a regular default judgment attracts the court's unfettered but judicious discretion under Order 10 rule 11, considering reason for default, length of delay, triable issues and prejudice. The applicant offered no explanation for the two-year delay or for letting the suit proceed undefended, and produced no affidavit from Patrick or the chief to corroborate her discovery of the suit.
Existence of a bona fide triable defence
No triable issue was disclosed: the applicant's claim rested on the 1st defendant's repossession of the suit property, whose lawfulness had already been rejected when a similar application by the 1st defendant was dismissed.
The applicant bought the plot at an auction following repossession by the 1st defendant, so her title depended on the validity of that repossession. The court, differently constituted, had already dismissed the 1st defendant's application premised on lawful repossession, dissipating any triable issue. Applying Patel v EA Cargo Handling Services, a triable issue raises a prima facie defence, which the draft defence did not.
Legal principles established
#- Substituted service under a court order is as effectual as personal service, and a defendant served by such means cannot later claim non-service
- A regularly entered default judgment may only be set aside in the court's discretion upon sufficient cause, whereas an irregularly entered one is set aside ex debito justiciae as of right
- A party seeking equitable discretion must explain delay and cannot benefit where indolence, negligence or inaction is imputable to him
Court orders
#- 1.The application dated September 22, 2022 is dismissed with costs to the plaintiff/respondent
- 2.The previous interim orders issued on September 26, 2022 are vacated and discharged as spent
- Jurisdiction invoked
- Inherent jurisdiction and discretion under Order 10 rule 11 of the Civil Procedure Rules to set aside default judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndolo v City Council of Nairobi & another (Environment & Land Case 1295 of 2013) [2023] KEELC 856 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/856/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.