Olang v Njeru & 13 others
The bottom line
#Kenya's Environment and Land Court in Mombasa threw out a land judgment because the defendants were never properly served with court summons.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants were served with summons to enter appearance
Service was irregular: the Deputy Registrar had directed fresh service on 21 June 2019 after finding the return of service unsatisfactory, and that order was never complied with.
The affidavit of service of 3 April 2019 claimed service on each defendant, but the Deputy Registrar on 21 June 2019 found the summons had not been collected from the registry and directed service afresh. That order was never reviewed or set aside and was not complied with, so the subsequent ex parte hearing and judgment rested on ineffective service.
Whether the judgment of 26 June 2023 should be set aside
Yes - the judgment and proceedings of 13 February 2023 were irregular and were set aside ex debito justitiae as a matter of right.
Following James Kanyiita Nderitu and the other authorities, a default judgment entered against a party not properly served is irregular and must be set aside as of right; the court need not consider whether a triable defence exists or whether there was delay, because the defendants were condemned unheard.
Whether the defendants had an advocate properly on record
No - neither Mkan & Company, Nabwana Nabwana & Company nor Ochieng Eddie Vincent & Company had filed any notice of appointment under Order 9, so no counsel was formally on record for the defendants.
A perusal of the court file disclosed no notice of appointment or change of advocate by any of the firms that appeared or were served with notices. Service of hearing notices on firms not formally on record was misplaced; the plaintiff's obligation was to serve the defendants directly until counsel came on record in accordance with Order 9.
Validity of the consent by which Nzaro Chai & Company Advocates came on record
The consent dated 14 August 2023 replacing Mkan & Company was irregular and invalid, having no legal consequence, since Mkan was never on record.
Because Mkan & Company Advocates had never filed a notice under Order 9, there was no advocate on record to be replaced; the consent through which the firm filing the application came on record was therefore invalid. However, this did not affect the court's finding that the judgment itself was irregular and liable to be set aside.
Legal principles established
#- A default judgment entered against a defendant who was not served or properly served with summons to enter appearance is irregular and must be set aside ex debito justitiae, as a matter of right, without inquiry into the merits of the intended defence or delay.
- An advocate must file and serve a notice of appointment under Order 9 of the Civil Procedure Rules before coming on record; appearing without such notice is improper conduct and a waste of judicial time.
Court orders
#- 1.The judgment dated 26th June 2023 and all consequential orders set aside for being irregular due to non-service of summons to appear and pleadings as directed by the Hon Deputy Registrar on 21st June 2019.
- 2.The defendants granted leave to enter appearance and/or file their defence with or without counterclaim, plus their statements and documents, and serve within thirty (30) days.
- 3.The plaintiff to file and serve a reply and defence to the counterclaim, if any, plus any supplementary documents and statements within fifteen (15) days after service.
- 4.Costs of the application awarded to the defendants.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A & 63 of the Civil Procedure Act and Articles 25(c), 50(1) and 159(2)(a),(b),(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olang v Njeru & 13 others", Case Analysis (2023). Environment & Land Case 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22019/eng@2023-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.