Wasike v BOM the Salvation Army Kabuchai Girls & another (Civil Suit E177 of 2025) [2025] KEMC 411 (KLR)

“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a merely erroneous decision and an error apparent on the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal.” (Emphasis added) There is no dispute that the 1st Defendant/Applicant is a public entity managing a public school. It is also undisputed that legal proceedings against a public entity ought to be instituted per the provisions of the Government Proceedings Act. To buttress this position, this court seeks refuge in Cheboi & another v Board of Management Kamoi Secondary School (Employment and Labour Relations Cause 27 & 28 of 2018 (Consolidated)) [2023] KEELRC 893 (KLR), where Keli J held interalia: Kitale SCC Claim No. E173 of 2024 Page 2 of 6 Ruling

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“In the upshot the court finds and determines that the applicant is an agent of the Cabinet Secretary of the Ministry of Education hence a government institution for which the Government Proceedings Act properly applies.” Having determined that the 1st Defendant/Applicant is a public entity, it follows that service of Summons to Enter Appearance and pleadings upon the 1st Defendant/Applicant was to be done per the provisions of the Government Proceedings Act. Section 13 of the Government Proceedings Act provides as follows on service of court process against the government or a government entity: 13. Service of documents All documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government in accordance with the provisions of this Act shall be served on the Office of the Attorney-General The provisions of the law above show that service of process upon the 1 st Defendant/Applicant herein was to be effected through the Attorney General. A reading of the Affidavit of Service sworn by Moses Kuloba Keya on 05 th May 2025, which affidavit informed the entry of interlocutory judgment herein against the 1st Defendant/Applicant, shows that service of the Summons to Enter Appearance and pleadings upon the 1 st Defendant/Applicant was Kitale SCC Claim No. E173 of 2024 Page 3 of 6 Ruling

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effected through the secretary in the principal’s office at the Salvation Army Kabuchai Girls Secondary School instead of the Attorney General as demanded by section 13 of the Government Proceedings Act. The foregoing is in sync with the observation made earlier by this court in this ruling that there is an error apparent on the face of the record. The said error is with respect to the entry of interlocutory judgment against the 1st Defendant/Applicant since there can be no two opinions on whether service of Summons to Enter Appearance and pleadings upon the 1 st Defendant/Applicant was to be effected through the Attorney General per section 13 of the Government Proceedings Act. The consequence of the findings above is that the interlocutory judgment on record against the 1st Defendant/Applicant is irregular for want of proper service of Summons to Enter Appearance and pleadings. It is settled in this jurisdiction that where a judgment was irregularly entered, the irregular ex parte judgment must be set aside as of right. This court draws inspiration from Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148, where the court stated as follows: “….[T]o all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte 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 Kitale SCC Claim No. E173 of 2024 Page 4 of 6 Ruling

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in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.”(Emphasis added) DETERMINATION The upshot of the foregoing is that this court makes the following orders:1. The interlocutory judgment entered herein against the Defendants on 03rd June 2025 and all the consequential orders arising thereby are set aside. 2. The Defendants' Draft Statement of Defence filed herein shall be deemed as properly filed upon payment of the requisite court fees, and the same be served upon the Plaintiff/Respondent within seven (7) days from the date hereof. 3. The Plaintiff/Respondent to file and serve their Reply to the Defendants’ Statement of Defence, if need be, days of service. Kitale SCC Claim No. E173 of 2024 Page 5 of 6 Ruling within ten (10)

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4. Each party to bear their costs of the 1 st Defendant/Applicant’s Notice of Motion Application dated 25th June 2025 It is so ordered. READ, SIGNED and DELIVERED in open court at Bungoma this 25 th day of November 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: C/A: Mr. Rioba Kitale SCC Claim No. E173 of 2024 Page 6 of 6 Ruling

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