Chalo v Masyula & 3 others (Environment and Land Appeal E006 of 2024) (Environment and Land) [2025] KEELC 3814 (KLR)

The process server deponed that he did not find the 1st Respondent at home and left the hearing notice with her mother. Service was therefore defective. The court held that where a judgment is irregular because service was not effected or was improperly or prematurely entered, it must be set aside as a matter of right, and it does not matter whether the defendant has a defence. Article 50 of the Constitution guarantees the right to be heard, so the trial Magistrate did not err in allowing the 1st Respondent to defend the suit.

The slip rule applies only to errors apparent on the face of judgments, rulings or orders; such errors must be obvious and their correction must not change the substance of the judgment or alter the court's clear intention. Altering the description of the suit property amounted to a change of the subject matter before the court, which is fundamental and could not be effected via a slip note. The trial Magistrate was therefore right to set aside the decree.

Relying on Mbogo v Shah, Apungu Arthur Kibira (quoting Kacem v Bashir) and Price & Another v Hilder, the court restated that a first appellate court must re-evaluate the evidence but interference with discretion requires a misdirection, misapprehension of the law, failure to consider relevant matters, or a plainly wrong decision. On the record, no such fault was found in the trial Magistrate's ruling.

The subordinate court held that functus officio does not apply where an ex parte judgment was issued, and the appellate court found no fault with that conclusion. Because the ex parte judgment was irregular for want of proper service, the trial court retained jurisdiction to set it aside and allow the 1st Respondent to defend the suit, in line with the constitutional right to be heard under Article 50.