[2019] KEELC 2824 (KLR)
The court found that the plaintiff failed to annex the original summons to the affidavit of service as required by Order 5, Rule 15 of the Civil Procedure Rules, 2010. There was ambiguity regarding whether service was effected on Mr. Too or Mrs. Too, and whether these individuals were the same or different persons...
Source-derived case information.
- Citation
- [2019] KEELC 2824 (KLR)
- Parties
- Plaintiff: Andrew Kipkoech Kurgat; Defendant: Joseph Kiplagat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 385 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte proceedings and judgment set aside; matter to be heard de novo
- Judges
- A Ombwayo
- Legal Topics
- Ex Parte Judgment, Service of Process, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Kipkoech Kurgat
Plaintiff
Joseph Kiplagat
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the defendant was properly served with summons to enter appearance and pleadings.
- 2 Whether the ex parte judgment and proceedings should be set aside for lack of proper service.
Ratio Decidendi
The court found that the plaintiff failed to annex the original summons to the affidavit of service as required by Order 5, Rule 15 of the Civil Procedure Rules, 2010. There was ambiguity regarding whether service was effected on Mr. Too or Mrs. Too, and whether these individuals were the same or different persons acting as the defendant's agent or caretaker. The plaintiff did not prove proper service on the defendant. As a result, there was a likelihood that the defendant was not served, and the ex parte proceedings and judgment could not stand. The court exercised its discretion to set aside the ex parte judgment and all consequential orders, directing that the matter be heard de novo.
Court Disposition
application allowed; ex parte proceedings and judgment set aside; matter to be heard de novo
Orders
- Ex parte proceedings and subsequent judgment and all consequential orders are set aside.
- The matter shall begin de novo.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 385 OF 2016
ANDREW KIPKOECH KURGAT..............................PLAINTIFF
VERSUS
JOSEPH KIPLAGAT...............................................DEFENDANT
RULING
The application herein is dated 27. 11. 2018 wherein the defendant/applicant prays that the exparte proceedings and subsequent exparte judgment and all consequential proceedings and orders be set aside and the matter to be heard de-novo.
The application is based on grounds that the exparte judgment was entered against the defendant who was not served with summons to enter appearance and all pleadings in this matter. The applicant contends right to be heard was violated and that the applicant has a good defence and triable issues.
The plaintiff in response states that the defendant was served through his agent one Mr. Too with the summons, plaint, verifying affidavit, list of documents and witnesses and witness statements. The defendant failed to enter appearance as required by law. The plaintiff applied for interlocutory judgment and the matter was fixed for hearing on 8. 2.2017. Hearing notice was served on the defendant’s caretaker, Mr. Too. She received the same.
I have considered the application, supporting affidavit and replying affidavit and do find that the plaintiff has not annexed the original summons to the affidavit of service as required by Order 5, Rule 15 of the Civil Procedure Rules, 2010. Moreover, it is not clear whether the summons was served upon Mrs. Too referred to the affidavit of service sworn by Vincent Ogutu on 18th January, 2017 or Mr. Too referred to in the affidavit of Andrew Kipkoech Kurgat sworn on 31st August, 2019. Mr. Andrew Kipkoech Kurgat appears to refer to Mr. Too and Mrs. Too as agent and caretaker respectively of the defendant. It is not clear whether he is referring to the same person or two different persons. I do find that there is a likelihood that the defendant was not served as the plaintiff has not proved that there was proper service.
Ultimately, I do set aside the exparte proceedings and subsequent judgment and all consequential orders herein and the matter to begin de-novo. Costs in the cause. Orders accordingly.
Dated and delivered at Eldoret this 30th day of May, 2019.
A. OMBWAYO
JUDGE