Elmi v Opeyo & Cheruiyot (Sued as the Legal Representatives of the Estate of Paul Kipchirchir Cheruiyot alias Paul Cheruiyot) & 2 others (Environment & Land Case E005 of 2020) [2024] KEELC 1715 (KLR)

The court perused its own record and found no affidavit of service proving service of the plaint and summons to enter appearance as required under Order 5 of the Civil Procedure Rules, nor any affidavits of service for the formal proof hearing or delivery of judgment. Drawing on Fidelity Commercial Bank Ltd v Owen Amos Ndung'u, a judgment obtained without proper service is irregular and the affected defendant is entitled to have it set aside as of right, regardless of a defence on the merits.

Applying Patel v East African Cargo Handling Services Ltd, the court held that a defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue. Having considered the annexed statement of defence and counterclaim, the court was persuaded that triable issues existed which ought to be determined at trial rather than left standing on an irregularly obtained default judgment.

The Respondent alleged the decree had been executed and the impugned title cancelled, but annexed no supporting documents, leaving the assertion a mere allegation. Even if true, the Respondent did not show prejudice incapable of remedy by costs. The court found no prejudice that could not be remedied by compensation in costs, and balancing the circumstances and convenience, setting aside the judgment with consequential stay was appropriate.

Having found the default judgment irregular and set it aside, the court reasoned that stay of the execution flowing from that judgment necessarily followed. This embraced the stay of the committal to civil jail orders of 4th April 2023 made by the Deputy Registrar, which were premised on the now-set-aside decree, and the court allowed both applications without costs.