Matiko v Wankuru & 2 others

2. The application is based on the grounds on the face of the application and the supporting affidavit sworn by JAIRUS MOGENI ONYONI sworn on the 3rd day of July, 2026. The grounds are that the applicants were never served with summons to enter appearance. That the process server confirmed that the applicants were served who were all staying behind emirates while having full knowledge that the same were not true and meant to mislead the court. That the 3rd applicant only became aware of this suit when he was first called by the 2nd applicant who reasonably believed that the respondent while referring to SILAS meant JAIRUS who resides at NYANCHABO near Migori Airstrip. That the 3rd defendant came to court on 1/7/2026 at 2PM and found that the matter had been called and decision rendered by the court. That the applicants were condemned unheard contrary to Article 50(1) of the Constitution as they were not served. 3. That the 1st applicant is the registered owner of parcel BUKIRA/BWISABOKA/16511where she resides as opposed to the assertions of the respondent that she has trespassed and put structures on parcel BUKIRA/BWISABOKA/988 as evidenced by annexure marked JMO-3. 4. The respondent filed a replying affidavit sworn by her on 30th July, 2026 in opposing the application. The grounds are that the application lays no legal or sufficient basis on which this court can grant the orders sought. That the application is inept, frivolous, mischievous, lacking in merit, incompetent and the same has been brought in bad faith and ought to be dismissed. 5. That the applicants were properly served and cannot turn around to allege that they were never served. That the applicants are employing delaying tactics so as to ensure that this matter is never concluded. That the applicants KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 2

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are indolent litigants who deliberately chose not to participate in these proceedings only to turn around when faced with execution proceedings. 6. That if the application is allowed it will certainly open a pandora’s box where any party desirous of rolling back the wheels of justice would just allege that they were not served and undo what a vigilant party could rightly have achieved. That no explanation has been offered by the applicants for the chronic absenteeism despite service being affected upon them. Analysis and Determination 7. The main issue for determination is whether the Judgment and consequent proceedings against the Defendants should be set aside for want of service. Order 10 Rule 11 of the Civil Procedure Rules gives the court wide discretionary powers to set aside a default judgment as follows; “Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 8. Order 10 rule 11 of the Civil Procedure Rules empowers the court to set aside judgment in default of appearance or defence or upon such terms as are just. 9. The general principle is that the court has unfettered discretion to set aside judgment on such terms as it deems fit and just. This principle was summarized as follows in Shah v Mbogo and Another [1967] EA 116 : “The discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.” KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 3

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10.More recently the Court of Appeal in Richard Nchapai Leiyangu v IEBC & 2 others NYR CA Civil Appeal No. 18 of 2013 [2013] eKLR expressed itself as follows: “We agree with the noble principles which go further to establish that the courts’ discretion to set aside ex parte judgement or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice.” 11.The first step is for the court to establish whether the ex parte judgement issued is a regular or irregular judgement. The Court of Appeal in the case of Yooshin Engineering Corporation v Aia Architects Limited (Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) (7 July 2023) (Judgment) discussed as follows;“ “What comes out clearly is that where the judgement is irregular in the sense that service was not effected, or that the judgement was improperly or prematurely entered, then such a judgement is irregular and must be set aside as a matter of right. It does not matter whether the defendant has a defence or not. The defendant only needs to satisfy the court that the judgement was irregular and that is the end of the matter. The issue of imposing conditions does not arise. However, even where the judgement is regular, the court still retains the wide discretion to set the same aside though if the Court decides to set aside the judgement, depending on the circumstances, it may do so on conditions that are just. That discretion, being wide, the KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 4

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main concern is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. It has however to ask itself under what conditions, if any, it ought to set aside the judgement and such conditions, if appropriate, must be just to both the Plaintiff and the Defendant.” 12.In our instant case, the Plaintiff averred that service was properly effected to the 1st to 3rd Defendants. A perusal of the court record shows that return of services sworn by AGGREY ONGIRI NYANSIMORA were filed as prove of service upon the defendants. Guided by the decision by the Court of Appeal in Shadrack arap Baiywo vs. Bodi Bach Ksm CA Civil Appeal No. 122 of 1986 [1987] eKLR that an affidavit of service is prima facie evidence that service has been conducted, it is my view that the ex parte judgement entered was regular. 13.This court still has discretion to set aside even regular judgement on conditions that are just depending on the circumstances of each case. The discretion is exercised judiciously to avoid hardship and not to assist a person who deliberately seeks to obstruct or delay the course of justice. However, before the same is exercised there are conditions an applicant must establish and or satisfy. 14.In the case of Shyoni Ltd v Sarah Mbithe Mutinda Kivuva Practicing as S. Mutinda & Co. Advocates (Civil Case 116 of 2010) [2023] KEHC 1660 (KLR) (Commercial and Tax) (21 February 2023) (Ruling) PROF NIXON SIFUNAJUDGE, rendered himself as follows: “For the losing party to upset the tables again, he or she will need to place before the court tangible and sufficient enough material, KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 5

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especially where an affidavit of service has been filed and is on record. Otherwise merely denying that you were served is not enough; and neither does it pose a formidable and legally sufficient challenge to an affidavit of service on record. To challenge the service, one has to not only deny having been served, but go further and contest the contents of an affidavit of service, as well as its truthfulness, credibility, and even point out other defects and impropriety in it, or of the service itself. Such contestation is usually peaked by applying to cross-examine the process server on his filed affidavit of service. In the case of this applicant, there has been no potent challenge to the affidavit of service of Wambugu Gitonga,sworn and filed herein on March 17, 2010.” 15.The court in our instant case granted the order to have the applicants cross examine the process server, however the same was not done. In any event, it was incumbent upon the Applicants to move this Court to cross-examine the process servers in order to satisfy the Court that service was not properly effected on them. I am guided by the Court of Appeal’s decision in Shadrack arap Baiywo vs. Bodi Bach KSM C.A. Civil Appeal No. 122 of 1986 [1987] eKLR where the Judges quoted Chitaley and Annaji Rao; The Code of Civil Procedure, Volume II page 1670 and held that:“There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 6

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opportunity of cross-examination given to those who deny the service.” 16.In our instant case the process server was never cross examined despite the order for cross examination being issued on 15/7/2026. In the absence of cross examination of the process server on the contents in the affidavit of service, it is considered as sufficient evidence of the regularity of the proceedings. 17.In an application for setting aside the law is that the Applicant should be able to demonstrate that service was irregular or that even if the service was regular there was good cause for failing to enter appearance and file defence. In James Kanyiita Nderitu and Another vs. Marios Philotas Chikas & Another [2016] eKLR. The court of Appeal held: “From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served. With summons to enter appearance but, for some reason or another, he had failed to enter appearance or to file defence resulting in the default judgment”. 18.Despite the views expressed in the above cited authorities, this Court take cognizance of precedence that allows a party the right to be heard however clumsy the proposed defence may be. In Sebei District Administration vs Gasyali & others [1968] EA 300 Sheridan J. observed that: “The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 7

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that to deny the subject a hearing should be the last resort of the court” 19.I find that it is in the interests of justice to allow the Defendants who have come on board albeit late the opportunity to probe the issues of ownership of the suit land. The court is guided further by the decision in the case of Gerita Nasipondi Bukunya & 2 others v Attorney General [2019] eKLR, which cited the Supreme Court of India in Sangram Singh v Election Tribunal, Koteh, AIR 1955 SC 664, at 711 and stated that: “There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.” 20.Although, I am amenable to grant the Applicants an opportunity to defend this suit, I take cognizance of the expenses incurred by the Plaintiff in serving the defendants. I also take cognizance of the fact of the delay in bringing this application. For these two reasons, I am obliged to hold that the Plaintiff is entitled to compensation by way of thrown away costs which I assess in the sum of Kshs Twenty Thousand only (Kshs 20,000). 21.In conclusion I hereby allow applicants application dated 3 rd July, 2026 in the following terms:a) THAT an order is hereby issued that the ex-parte judgment entered on 10th December, 2025 and all consequential orders be set aside. KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 8

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b) THAT the applicants are granted leave to file defence out of time and the annexed draft defence be deemed as duly filed upon payment of court fees. c) THAT the applicants to pay Kshs. 20,000/= as thrown away costs to the plaintiff within 14 days from the date of this ruling in default the exparte judgment shall remain in force. Dated, Signed and Delivered in open Court at Kehancha on this 9 th day of September, 2026 virtually via Microsoft Teams. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kigera/Enock…….Court Assistant Plaintiff………..Absent Defendant……..Absent Advocate for Plaintiff……..Mr. Achola present Advocate for defendants….Mr. Ouma present Court: Mention of 30/9/2026 for further dierections. KEHANCHA SPMC ELC NO. E028 OF 2025 (RULING2) 9

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