Cheptoo v Korir

4. He further stated that he was served with a decree dated 17th March, 2026 and an eviction notice dated 2nd April, 2026. He added that the present suit was a surprise to him as he had no knowledge of the existence of the suit. 5. He went on to state that he was never served with the summons to enter appearance or pleadings. 6. He stated that the adavit of service on record alleging that service was eected to him was false. He added that the matter proceeded ex parte and judgment entered against him. 7. He stated that the judgment was irregular and ought to be set aside He also stated that he had an arguable defence that raised triable issues. 8. He further stated that unless the court intervenes, he stood to suer irreparable loss through eviction based on an irregular judgment. 9. He also stated that he had done extensive developments on the suit parcel. He added that it would be in the interest of justice that the judgment be set aside and he be allowed to defend the suit. Submissions 10. Counsel for the Defendant/Applicant led his submissions dated 23rd May, 2026 where he identied the following issues for determination: a. Whether the judgment entered herein was regular or irregular b. Whether the Defendant/Applicant was properly served with summons to enter appearance and pleadings. c. Whether the Defendant/Applicant has demonstrated sucient grounds for setting aside the ex-parte judgment. d. Whether the Defendant/Applicant has demonstrated the existence of triable issues 11. On the rst issue, counsel submitted that the judgment was irregular for want of proper service. He further submitted that the Plainti/Respondent’s annexure of the adavit of service conrmed the said position. 12. He submitted that the Defendant/Applicant denied ever receiving the pleadings. He argued that sliding documents under a closed door or leaving it with third parties did not amount to proper service as per Order 5 of the Civil Procedure Rules. 13. It was his submission that the process server ought to be summoned for cross-examination so as to interrogate the inconsistencies in the adavit of service. He relied on the case of Babs Security Services Ltd V Mwaura Yawa Nzao & 19 Others [2019] eKLR. 14. He went on to submit that the ex parte proceedings oended the rules of natural justice and Article 50 of the Constitution. 15. On the second issue, he submitted that the Defendant/Applicant had demonstrated sucient grounds that warrants the setting aside of the ex-parte judgement. He cited the case of Attorney General V Small Wonder Ltd [2015] KECA 122 (KLR) 16. It was his submission that the Plainti/Respondent would not suer prejudice incapable of compensation by costs should the matter be reopened and heard on merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24 2

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17. On the nal issue, he submitted in the armative and argues that the Applicant had occupied the suit parcel since 1997 and that the draft defence and counter claim raised substantial issues. 18. In conclusion, counsel urged the court to set aside the judgment delivered on 6th February, 2026. 19. Counsel for the Plainti/Respondent led his submissions dated 16th June, 2026 where he identied the following issues for determination: a. Whether the Notice of Motion competently seeks the setting aside of the judgment and decree there being no express prayer to that eect. b. Whether the judgment and decree are regular and if so, whether any basis exists to set them aside. c. Whether stay of execution should issue. d. Whether the process server should be summoned for cross examination. e. Whether leave to enter appearance and le defence out of time should be granted. f. Whether the proposed joinder of the District Land Registrar and any inquiry into title are properly before the court. g. Whether the Defendant’s right to a fair hearing under Article 50(1) of the Constitution is engaged. h. Who should bear the costs of the Application. 20. On the rst issue, counsel submitted that none of the prayers in the application sought for setting aside of the judgment and decree. He added that the same only appeared only in the grounds of the motion. 21. It was his submission that the application was incompetent and ought to be dismissed. He relied on the case of Peterkeen Mwiu Kimweli & 47 Others V National Social Security Fund Board of Trustees [2021] KECA 167, Order 10 Rule 11 and Article 159 of the Constitution. 22. On the second issue, counsel submitted that the judgment was regular. He cited the case of S.S Mehta & Sons Ltd V Gachira & another [2023] KEHC 2160 (KLR). He submitted that the Defendant/ Applicant was not condemned behind his back. 23. Going to the third issue, he relied on Order 22 Rule 22 of the Civil Procedure Rules and the case of James WangLQ & Another V Agnes Naliaka Cheseto [2012] eKLR. He submitted that the Applicant had not demonstrated substantial loss being the eminent eviction. 24. He submitted that the Applicant never oered any security for the decretal amount of Kshs. 500,000. He added that the extent of the stay orders sought was only pending hearing and determination of this application. 25. On the fourth issue, he submitted that the issue of summoning the process server for cross examination was discretionary. He relied on Order 19 Rule 2 of the Civil Procedure Act and the case of Kwacha Communications Ltd & Another V Pindoria Holdings Ltd [2022] KEHC 734 (KLR). 26. It was his submission that the discretionary power to examine the serving ocer where service was alleged not to have been properly eected. He argued that the power did not extend to converting an interlocutory application into a full adversarial hearing on the merits of service. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24 3

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27. On the fth issue, counsel submitted that the prayer for leave to le defence out of time was incoherent while the judgment stood. He argued that the existence of a possible defence does not compel the reopening of a concluded judgment. He cited the case of Kenya Commercial Bank Ltd V Nyataige & Another [1990] eKLR. 28. On the sixth issue, he submitted that the prayer for joinder of the District Land Registrar is not in the present application hence incompetent. He relied on Section 26 of the Land Registration Act. 29. On the seventh issue, he submitted that the application was brought before this court after execution had already commenced. He added that the Defendant/Applicant seeks to relitigate over concluded matters. 30. It was counsel’s submission that the Defendant/Applicant’s right to be heard under the constitution was met and a regular judgment delivered. 31. On the nal issue of costs, counsel relied on Section 27 of the Civil Procedure Act and urged the court to grant the Plainti/Respondent costs of the application. He cited the case of Ravat Trading Co. Ltd V Bank of Baroda & Tetezi House Ltd [2018] eKLR. Analysis and Determination 32. Judgment was delivered in favour of the Plainti/Respondent on the 29th January 2026. On the 17th March 2026, a formal decree was issued by the Court and the matter is currently pending execution. 33. The trial judge found that the defendant neither entered appearance nor led defence despite having been served. 34. It is the Defendant/Applicant’s case that he was never served with summons to enter appearance hence it was necessary to summon the process server. He also claimed he has a defence that raises a triable issues and ought to be given a chance to ventilate it. 35. It is not in dispute that in the Notice of Motion dated 20th April 2026 the Defendant /Applicant did not seek that the exparte judgment dated 29th January 2026 be set aside. The said Notice of Motion was drawn by counsel yet in his submissions he has not addressed this issue. 36. The Plainti/Respondent in her submissions urges the court to nd the application as incompetent. It is her submission that a court grants relief upon the prayers actually sought, and may not grant a party substantive relief which it has not asked for and of which the opposing party has had no notice to meet. Reliance is placed in the cases of Peterkeen Mwiu Kimweli & 47 Others V National Social Security Fund Board of Trustees [2021] KECA 167 ; Seka & 14 others Vs Church of God in East Africa (Kenya) (2024) KEHC 957 (KLR). 37. In the case of Unga Limited Vs Magina limited (2014) eKLR the court stated thus; “ This court is now enjoined to do substantial justice to the parties; It must disregard technical procedures and aim at settling the root of the dispute. That is the spirit and the letter of Article 159 of the constitution as read together with section 1A and 1B of the Civil Procedure Act. This overriding principle is a guiding beacon for the court. The principle aims of the overriding objective includes the need to act justly in every situation, the need to have regard to the principle of proportionality and the need to create a level playing ground for all https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24 4

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the parties coming before the Courts by ensuring that the principle of equality of aims is maintained and that as far as it is practicable to place the parties on equal footing”. 38. I am guided by the above authority in nding that though there is no prayer for setting aside the exparte judgment, it could have been inadvertent mistake on the part of counsel which mistake ought not to be visited on the litigant. This is because prayer No.2 and 4 of the Notice of Motion presupposea setting aside of the exparte judgment. 39. Having disposed of this preliminary issue, the main issue for determination is whether the judgment herein was regular or irregular. 40. The Defendant/applicant has maintained that he was never served with summons to enter appearance, pleadings or hearing notices in this matter. In paragraph 12 of the adavit sworn by Onyango Henry Obonyo. on the 3rd day of June 2024, he states: “ That following the melee, all our documents were destroyed and considering our reasonable apprehension of our lives, I was unable to serve the Defendant in Nakuru ELC No. e040 of 2024 Paul C Korir” From the above averments the claim that he had served the wife of the Defendant whose name is not given cannot stand. No documents were presented to court to conrm that he had served an adult member of the defendant’s family. 41. The process server in his adavit sworn on the 29th July 2024 states in paragraph 6; “ That I started with the Defendant in Nakuru ELC No.E039 of 2024. Alice Salatei, who is a neighbour to Paul C Korir, the Defendant herein. As I was at the home of Alice Salatei, Paul C Korir got wind of what was happening as soon as he saw the Oce Commanding Station’s vehicle and immediately locked his house and ed” From the above averments it is not clear whether the process server saw the defendant herein locking up his house. Also in paragraph 7 of the said adavit he depones :“ That when I cleared with Alice and got to Paul’s home there was nobody in the home. Since I had extra copies I slid a copy under his closed door and the OCS took another copy of the Application and the order and handed it over to the area chairman of the Community policing who further handed the same to the Assistant chief who had already joined us, with instruction to ensure the same has reached the said Paul C Korir”. From the foregoing it is clear that the process server cannot state without contradiction that the defendant herein received the said documents. It is for this reason that I nd that no proper service was eected on the Defendant herein. 42. In the case of S. S Mehta & Sons Ltd Vs Gachira & Another (2023) KEHC 2160 (KLR) citing Mwala Vs Kenya Bureau of Standards EALR(2001) IEA 148; the court stated thus:“ …to all that I should add my own views that a distinction is to be drawn between a regular and irregular exparte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24 5

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irregular one for instance, one obtained either where there is no proper service; or any service at all of the summons to enter appearance ….” Having stated that no proper service was eected on the defendant, then the exparte judgment entered on 29th January 2026 is irregular and the same is set aside. 43. At this point there would be no need to summon the process server for cross examination on any of the adavits of service. 44. The upshot of the matter is that I nd merit in the Application and I grant the orders sought namely: a. That the exparte judgment entered on 29th January 2026 and all consequential orders and decree are hereby set aside. b. That leave is hereby granted to the Defendant/Applicant to enter appearance and le defence out of time within twenty-one (21) days from the date of this ruling. c. That costs of this application be borne by the Defendant/Applicant RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 24TH DAY OF SEPTEMBER 2026. L KOMINGOI JUDGE In presence of:Ms. Kiumbuku for Mr. Odundo for the Plainti/Respondent Mr Bore for the Defendant/Applicant Court Assistant: Irene/Derrick https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5625/eng@2026-09-24 6

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