Gakuha v Embakasi Ranching Company & 4 others (Environment and Land Case 708 of 2017) [2024] KEELC 580 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment that cancelled land titles, but only for the defendant who was never personally served.
What this practically means
#Executive summary
#Key legal issues
#Regularity of service on the 1st Defendant
Service on the 1st Defendant was properly effected by direct service; the default judgment against it was regular and could not be set aside as of right.
The Plaintiff's advocate swore an Affidavit of Service and annexed the Summons stamped 'received' by the 1st Defendant, along with stamped mention notices. The presumption of service thus arose and shifted the burden to the 1st Defendant, who neither cross-examined the process server nor refuted that the stamp and signature on the documents were its own. Having failed to discharge that burden, the 1st Defendant could not show the judgment was irregular.
Setting aside judgment against the 4th Defendant served by substituted service
The court exercised its discretion to set aside the judgment against the 4th Defendant, giving him the benefit of the doubt that he did not see the newspaper advertisement, since his titles were invalidated without a hearing.
Substituted service rests on a rebuttable presumption that the defendant will see the advertisement. Following Phillip Mutiso Mulalya, if the defendant is not actually notified of the suit, subsequent proceedings do not result in substantive justice. The 4th Defendant asserted he did not see the advertisement, and the judgment cancelled his certificates of lease without an opportunity to defend, which the court found to be a legitimate ground for exercising its discretion to set aside the judgment.
Whether triable issues were raised
The 4th Defendant's Defence, claiming lawful acquisition of the suit properties from the 1st Defendant and valid certificates of lease, raises triable issues warranting a full hearing.
Applying Job Kilach, a triable issue need not be one that would succeed, only one warranting further interrogation at trial. The 4th Defendant pleaded that he legally acquired the suit properties from the 1st Defendant and holds valid certificates of lease, and that the Plaintiff has no right to the properties. The court was satisfied these were bona fide triable issues requiring adjudication through a hearing.
Legal principles established
#- There is a presumption of service in favour of a process server, and the burden lies on the party questioning service to show it is incorrect.
- An irregular default judgment, entered against a defendant not properly served, is set aside ex debito justiciae as a matter of right.
Court orders
#- 1.The judgment and decree entered in this case on 4th November 2021 and all consequential orders be and are hereby set aside
- 2.The Defendants are granted conditional leave to defend the suit and shall file the Defences within twenty one (21) days from the date of the Ruling
- 3.The orders are granted on condition that the 4th Defendant pays to the Plaintiff's thrown away costs of Kshs. 100,000 within 21 days from the date of the Ruling
- 4.Costs of the application shall be in the cause
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakuha v Embakasi Ranching Company & 4 others (Environment and Land Case 708 of 2017) [2024] KEELC 580 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/580/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.