Naanyu v Metto & another (Suing as the Administrators of the Late Elizabeth Jepchoge Sirma) (Environment and Land Appeal E022 of 2023) [2025] KEELC 7695 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether Nyairo & Company Advocates was properly on record under Order 9 Rule 9 CPR
Properly on record; Order 9 Rule 9 applies only where there was a previous advocate on record or a party previously acting in person, and an appeal is a separate suit permitting fresh instructions
The Appellant instructed her advocates only on 23rd August, 2023, after judgment had been entered; no other advocate was on record who could be prejudiced. She claimed ignorance of the suit until execution. The court, citing K-Rep Bank Limited vs Segment Distributors Limited and Kazungu Ngari Yaa, held that only a Notice of Appointment under Order 9 Rule 7 was required. On appeal, fresh instructions to different counsel are always permissible.
Whether the trial magistrates' court had pecuniary jurisdiction
No basis shown to displace jurisdiction; the magistrates (Senior Principal Magistrates) had jurisdiction up to KShs. 15,000,000 under Section 7(1)(b) of the Magistrates' Court Act, and there was no valuation evidence that the suit property exceeded that limit
The Appellant had purchased the property for KShs. 3,300,000 in 2011. While the land may have appreciated over 14 years, no current valuation was placed before the court establishing that its value at filing exceeded the KShs. 15 million limit. In the absence of such evidence, the objection to pecuniary jurisdiction failed.
Whether the Appellant was duly served with summons and pleadings
Service was, at best, wanting and at worst non-existent; no summons to enter appearance were ever extracted, the affidavit of service was defective under Order 5 Rule 15, and the judgment was irregular
The process server's affidavit omitted the identity of the worker who allegedly identified the Appellant, the telephone number used, and details of the suit parcel's location, contrary to Order 5 Rule 15. The Appellant produced WhatsApp-posted photographs showing she was at a funeral in Lessos at the time of alleged service. The lower court file disclosed no extracted summons. The trial court also failed to examine the process server under Orders 5 Rule 16 and 19 Rule 2 when service was challenged.
Whether the trial court erred in dismissing the application to set aside the ex-parte judgment
Yes; the trial magistrate failed to apply Order 10 Rule 11, ignored the draft defence and triable issues, and made findings on fraud on the merits without hearing the Appellant, contravening Article 50(1)
A court faced with an application under Order 10 Rule 11 exercises wide, judicious discretion (CMC Holdings Ltd vs James Mumo Nzioki). Here the judgment being irregular, it had to be set aside ex debito justitiae. The draft defence showed purchase for value, due diligence and 12 years' possession — a prima facie defence meriting trial. The magistrate instead determined merits and found fraud, condemning the Appellant unheard, and the fact that the decree had been executed did not oust the power to set aside (Fort Hall Bakery Supply Company).
Legal principles established
#- Where a default judgment is entered against a defendant who was not served or properly served with summons, it is irregular and must be set aside as of right (ex debito justitiae), without inquiry into triable issues or delay
- Order 9 Rule 9 CPR does not apply where a party was never represented by an advocate before entry of judgment and did not participate in the trial
- The power to set aside an ex-parte judgment does not cease merely because the decree has been extracted and/or executed
- In determining an application to set aside ex-parte judgment, the court must consider whether a draft defence raises triable issues and must not delve into the merits
Court orders
#- 1.The Ruling delivered on 28th November, 2023 in Eldoret CM ELC Case No. E094 of 2022 is set aside and replaced with an order allowing the Appellant's application dated 23rd August, 2023
- 2.The ex-parte proceedings undertaken and ex-parte judgment dated 23rd August, 2022 are set aside
- 3.The Appellant is granted leave to file her Defence with supporting documents and statements upon payment of the requisite court filing fees, and the matter to proceed for hearing afresh on its merits before any Magistrate with requisite jurisdiction other than Hon. P.N. Areri
- 4.The restriction on title number Eldoret Municipality Block 14/594 placed vide ruling of 29th April, 2024 in this Appeal shall remain in force pending hearing and determination of the suit before the trial court
- 5.The Certificate of Lease issued on 26th June, 2023 in the names of Moses Kibet Metto and Joshua Kipkemboi Metto pursuant to the decree of the trial court is suspended pending hearing and determination of the suit in the lower court
- 6.The Appellant shall have the costs of this Appeal, to be borne by the Respondents
- On appeal from
- Chief Magistrate's Court, Eldoret (ELC Suit No. E094 of 2022)
- E094 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court (trial court's ruling of 28th November, 2023 dismissed an application to set aside ex-parte judgment); reference to section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naanyu v Metto & another (Suing as the Administrators of the Late Elizabeth Jepchoge Sirma) (Environment and Land Appeal E022 of 2023) [2025] KEELC 7695 (KLR)", Case Analysis (2025). Environment and Land Appeal (Eldoret) — number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7695/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.