[2014] KEELC 74 (KLR)
The court found that the affidavit of service was defective and unreliable, as it referenced a law firm not on record and lacked necessary details about the identification of the applicants. The process server's affidavit was deemed insufficient to prove proper service. Since service of summons is fundamental to the...
Source-derived case information.
- Citation
- [2014] KEELC 74 (KLR)
- Parties
- Plaintiff: Charles Khisa Ngwengwe; Plaintiff: Geofrey Wekesa; Plaintiff: Geofrey Wanjala; Plaintiff: Ndelema Self Help Group; Defendant: Simon Wachie; Defendant: Calistus Nyongesa; Defendant: Gladys Wafula; Defendant: Bernard Munialo; Defendant: Janet Mukopi; Defendant: Tom Wanambisi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 122 of 2013
- Procedural Posture
- Notice of Motion / Application to Set Aside Ex Parte Judgment
- Outcome
- Application allowed; ex-parte judgment set aside; defendants granted unconditional leave to defend.
- Judges
- EO Obaga
- Legal Topics
- Service of Summons, Setting Aside Ex Parte Judgment, Affidavit of Service, Leave to Defend, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Khisa Ngwengwe
Plaintiff
Geofrey Wekesa
Plaintiff
Geofrey Wanjala
Plaintiff
Ndelema Self Help Group
Plaintiff
Simon Wachie
Defendant
Calistus Nyongesa
Defendant
Gladys Wafula
Defendant
Bernard Munialo
Defendant
Janet Mukopi
Defendant
Tom Wanambisi
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the defendants were properly served with summons to enter appearance and file defence.
- 2 Whether the affidavit of service filed was false or defective.
- 3 Whether the ex-parte judgment should be set aside and leave to defend granted.
Ratio Decidendi
The court found that the affidavit of service was defective and unreliable, as it referenced a law firm not on record and lacked necessary details about the identification of the applicants. The process server's affidavit was deemed insufficient to prove proper service. Since service of summons is fundamental to the right to be heard, the absence of proper service rendered the ex-parte judgment liable to be set aside. Furthermore, the court noted that the draft defence and the respondents' own affidavit revealed serious contested issues that warranted a full hearing. Consequently, the court exercised its discretion to set aside the ex-parte judgment and granted the defendants...
Court Disposition
Application allowed; ex-parte judgment set aside; defendants granted unconditional leave to defend.
Orders
- The ex-parte judgment entered herein is hereby set aside.
- The defendants are granted unconditional leave to defend this suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 122 OF 2013
CHARLES KHISA NGWENGWE
GEOFREY WEKESA
GEOFREY WANJALA
(Suing as the representatives of
NDELEMA SELF HELP GROUP) ::::::::::::::::::::::::::: PLAINTIFFS
VERSUS
SIMON WACHIE
CALISTUS NYONGESA
GLADYS WAFULA
BERNARD MUNIALO
JANET MUKOPI
TOM WANAMBISI ::::::::::::::::::::::::::::::::::::::: DEFENDANTS
R U L I N G
The applicants filed a notice of motion dated 31/7/2014 in which they seek to set aside ex-parte proceedings herein which culminated in a judgment delivered on 30/7/2014. The applicants contend that they were never served with summons to enter appearance and file defence. The applicants contend that the affidavit of service which was filed in court is false in that they were not served as alleged. The applicants further contend that they have a defence with triable issues and should therefore be granted unconditional leave to defend this suit.
The respondents have opposed the application based on replying affidavit sworn on 23/9/2014 and filed in court on the same day. The respondent contend that the judgement sought to be set aside was regulary obtained and that the applicants are merely faulting the service of summons and that in any case, the applicants have not annexed the affidavit of service which they are faulting. The respondents contend that the applicants have no defence with triable issues.
I have carefully gone through the applicant's application as well as the opposition to the same by the respondents. The only issue for determination herein is whether there was service of summons or not.The applicants contend that the affidavit of service by the process server is false. The applicants have gone ahead to demonstrate that indeed the process server's affidavit of service is false. Contrary to the respondents claim that the applicants did not annex the affidavit of service to the supporting affidavit, the said affidavit is the first annexture to the supporting affidavit. In paragraph 3 of the affidavit of service, the process server depones that he received summons from M/S Simiyu Wafula & Co. Advocates for service. The firm of M/S Simiyu Wafula & Co. are not on record in this case. The firm which was initially on record for the respondents was the firm of M/S Lel Bungei & Co. Advocates. The respondents later engaged the service of M/S Kraido & Co. Advocates.The firm of M/S Simiyu Wafula & Co. have never been on record in this matter. The process server was therefore wrong to state that he received summons from M/S Simiyu Wafula & Co. Advocates.
The Process Server does not even disclose the person who allegedly identified the applicants to him. The affidavit is scanty in details and cannot be said to be a proper affidavit. Service of summons is so central to any litigation. Without proper service or no service at all, the court is entitled to set the ex-parte judgement ex debitio justitiae. For arguments sake even if the court were to assume that service was proper, the draft defence and even the replying affidavit by the respondents show that there are serious contested issued which the applicants ought to be given opportunity to defend. I therefore find that this is a proper case where the ex-parte judgement should be set aside. I allow the applicant's motion with the result that the ex-parte judgement entered herein is hereby set aside. The defendants are granted unconditional leave to defend this suit. Defence to be filed within fourteen days from the date hereof.The applicants shall have costs of this application.
It is so ordered.
Dated, signed and delivered at Kitale on this 2nd day of December, 2014.
E. OBAGA
JUDGE
In the presence of Mr Ingosi for Mr Okatch for defendant/Applicant. Court Clerk – Isabellah.
E. OBAGA
JUDGE
02/12/2014