[2025] KEHC 6884 (KLR)

Kenya Human Rights Commission & 8 others v Nchebere; Law Society of Kenya & 2 others (Interested Parties) (Judicial Review Application E082 of 2024) [2025] KEHC 6884 (KLR) (Judicial Review) (21 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6884 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E082 of 2024

RE Aburili, J

May 21, 2025

Between

Kenya Human Rights Commission

1st Applicant

Katiba Institute

2nd Applicant

Kenya Section Of The International Commission Of Jurists (Icj Kenya

3rd Applicant

Transparency International Kenya (Ti)

4th Applicant

The Institute for Social Accountability (Tisa)

5th Applicant

Africa Center For Open Governance

6th Applicant

Siasa Place

7th Applicant

Tribeless Youth

8th Applicant

Muslims For Human Rights (Muhuri)

9th Applicant

and

Japhet Koome Nchebere

Respondent

and

Law Society Of Kenya

Interested Party

Kenya Medical Practitioners, And Pharmacists And Dentists Union (Kmpdu

Interested Party

Kenya Union Of Clinical Officers

Interested Party

Ruling

Ruling On Application To Set Aside Judgment 1. The Respondent Japhet Koome Nchebere is the immediate former Inspector General of Police IGP. By his Notice of motion dated 17th January 2025 he seeks orders for setting aside of the Judgement/ Decree dated 31st December 2024 rendered by Ngaah J and that he be granted leave to file his replying affidavit to the Notice of Motion dated 17th April 2024.

2. The application is supported by an affidavit sworn by the Respondent Japhet Koome Nchebere on even date.

3. The Respondent’s case is that he was condemned unheard and that he only came to know of the impugned judgment which found him personally liable for the omissions and commissions of the officers under his command as the then Inspector General of Police, through the media on 8th January 2025.

4. It is his case that he resigned as the Inspector General of Police on 12th July 2024 and the Judgement has far reaching consequences on him in spheres financial, emotional and reputational. It is his case that he was never served with the Notice of Motion dated 17th April 2024 and any other pleadings nor was he notified of the proceedings.

5. The Respondent also depones that the affidavits sworn on 25th March 2025 by Emily Kinama and Michael Kioko on behalf of the Applicants ought to be struck out as they were filed out of time and without the leave of the court.

6. He also deposes that the said affidavits do not allude to service upon him and further that the Inspector General’s office was on the 4th floor of Jogoo House Wing A while the process server alluded to have effected service on the 3rd floor at the Registry as seen from the rubber stamps and not the Legal Department. The Respondent also deposes that the documents do not bear any signature of the recipient.

7. According to the Respondent, the only time an alternative service to personal service is allowed is when efforts to personally serve have failed and that in such instances, an adult member of the Respondent’s family ought to have been served.

8. The Respondent also deposes that his official email address is jnkoome@yahoo.com and not the email address reflected in the annexures. It is his case that as a public figure, his whereabouts were always known and as such, he was easily traceable.

9. The Respondent in his written submissions dated 3rd April 2025 argues that the Applicants failed to comply with Order 5 Rules 8 and 12 of the Civil Procedure Rules on personal service.

10. He also submits that the National Police Service was not a party to the suit and as such, the purported service at their registry as the Legal Department or through email did not amount to service upon the Respondent.

11. The Respondent relies on the case of Patrick Maina Mungai & 4 Others vs. Bomn Motors Limited & 2 Others where the court emphasised the need to make an effort to ensure personal service before resulting to alternative service.

12. He also relies on the case of James Kanyiita Nderitu & Another vs. Marios Philaotas Ghikas & Another Mombasa C.AC.A. No.6 of 2015 where the court defined an irregular judgment as one where the party against whom judgement has been entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to the allegations.

13. In response to the notice of motion application, the exparte Applicants filed two affidavits, one sworn by Emily Kinama and the other by Michael Kioko on 25th March 2025.

14. In the affidavit by Emily Kinama, the Litigation Manager at Katiba Institute, it is deposed that the Applicants herein filed judicial Review motion dated 17th April 2024 where the main contention was that Mr Japhet Koome Nchebere, the former Inspector General of the National Police Service, acted with high impunity and irregularly directed subordinate police officers to disperse peaceable and unarmed protests forcibly and violently.

15. The Respondent, it is deponed, never investigated nor disciplined police officers who forcibly, violently, or lethally dispersed peaceable and unarmed protests.

16. That the matter was heard by way of written submissions and parties highlighted their submissions on 13th July 2024 before judgment date was fixed and finally delivered on 31st December 2024.

17. According to the 2nd exparte Applicants, where a party has a right to be heard, a court cannot force the party to appear in court and where he forfeits the right to be heard, the court’s judgment cannot be disturbed when the consequences finally dawn on that party.

18. It is averred that a judge of equal status cannot disturb the finding of another judge and therefore recourse to a party only lies in an appeal to a higher court. It is further urged that the contention that there was no service is not supported by any evidence on the record.

19. The 2nd exparte Applicant’s case is that on 14th April 2024, counsel for the Applicants served the Respondent with a demand letter via email, counsel also served the Respondent on 19th April 2024 with the pleadings and the court order via email. Further, that on 22nd April 2024, the Respondent was served physically with the Certificate of Urgency and Notice of Motion Application at his office on the 3rd Floor of Jogoo House.

20. The Applicants also contend that their counsel served the Respondent and the Interested Parties with the demand Notice dated 14th April, 2024, pleadings and submissions both physically and via email, as shown by annextures EK2, EK3 and EK5 and an affidavit of service filed in court as per EK4. That a hearing notice was also served physically at the Respondent’s office on 15th July 2024. It is contended in depositions that despite persistent efforts to serve the Respondent, he ignored the court proceedings and only woke up after judgment was delivered.

21. Mr. Kioko the Registry Manager at Katiba Institute in his affidavit deposes that on 22nd April 2024, he received from Mr. Dudley Ochiel, Advocate, a notice of Motion dated 17th April 2024, a Certificate of Urgency Application dated 15th April 2024 together with a Chamber Summons dated 15th April 2024, a Statutory Statement dated 15th April 2023 and a Verifying Affidavit sworn on 15th April 2024 attached with annexures with instructions to effect service upon the Respondent.

22. He deposes that he proceeded to the Respondent’s office on the same day and upon introducing himself and stating the purpose of his visit he was directed to the legal offices on the 3rd floor where service was acknowledged through the appending of the official rubber stamp on the front page of his copy.

23. In their submissions dated 6th April 2025, it was argued that the Affidavits that the Respondent seeks to be struck out were filed on 25th March 2025 and that the matter was last in court on 6th March 2025, when the Court granted the Respondent 14 days to file a Replying Affidavit(s).

24. The exparte applicants submit that if they were to calculate the days, including weekends, the days would have expired on 20th March 2025 however, if they were to exclude the weekends from the countdown, the 14 days would expire on 25th March 2025. Further, that assuming the days expired on 20th March 2025, the late filing was only 5 days. It is also submitted that the Respondent, upon service, filed his further affidavit and submissions and he was therefore not prejudiced in any way.

25. The exparte Applicants also submit that on 6th March 2025, counsel explained to the Court that he would be away from the office for some time for personal reasons. That it is on this basis that the court adjusted the directions from 7 to 14 days and therefore the slight delay, if any, had already been hinted at. The exparte Applicants rely on the case of Safepak Limited v Henry Wambega & 11 others [2019] eKLR where the court is said to have held that although the power to strike out pleadings is discretionary, the same must be exercised sparingly and in the clearest of cases.

26. They also submit that as was held by the Courts in Kenya Hotel Properties Limited v Attorney-General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022), Philip Moi v Pluda Moi Petition No 65 of 2012, Robert Mwangi v Catering Ltd and another [2012] eKLR and Cami Graphics Limited v Chief Registrar of the Judiciary & 2 others; Commissioner of Lands& 4 others (Interested Parties) (Constitutional Petition 543 of 2022) [2024] KEHC 2999, superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction. The Applicants also submit that Article 165(6) of the Constitution in plain language bars this court from reviewing or disturbing a finding of another judge, a peer.

27. They also relied on Albino Mathom Aboug v Attorney-General & 2 others [2018] eKLR where the court is said to have held that ‘the only avenue available to one who may be dissatisfied with a decision of a superior court is that of appeal in the normal appeal process following the hierarchy of court structure’.

28. On the authenticity of the rubber stamps, the exparte Applicants submit that the Respondent should have produced evidence to challenge the authenticity of the rubber stamps.

29. The Applicants also rely on the case of Justus Mutumwa, Karani Muema And 3 Others Vs ODPP and State Law Office HCCHRPET/E009/2025 where the Court observed that service on public officials takes a different route as compared to service on private bodies. That the court observed that Service via a publicly available email address is valid if it belongs to the officer, office, or institution being served. Further, that in the case, service through the National Police Service’s official email was acceptable, as the same was linked to the Inspector General, the head of the service and that such service would therefore inevitably bring the pleadings to his attention.

30. It is also the exparte Applicant’s submission that as was held in the case of James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR, the Applicant was required, for instance, to demonstrate whether the intended defence raises triable issues and the respective prejudice such party is likely to suffer.

31. The exparte Applicants’ further submission is that setting aside a judgment is a discretionary relief, and one must approach the Court with clean hands. Further, that it is not designated to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice. Reliance is placed on the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR.

Analysis and Determination 32. I have considered the application as filed, the affidavit in support, the responses and annexures thereto and the written submissions and authorities relied on by the Applicants and Respondent. The only issue for determination is whether the prayers sought are available to the Respondent. There are other questions that I shall endeavour to resolve.

33. In the first instance, the Respondent has sought for the exparte Applicants’ replying affidavits sworn by Emily Kinama and Michael Kioko on 25th March 2025 to be struck ought from the record for having been filed out of time.

34. In response the Applicants argue that on 6th March 2025, the Court granted the Respondent 14 days to file a Replying Affidavit(s) and therefore if they were to calculate the days, including weekends, the days would have expired on 20th March 2025 however, if they were to exclude the weekends from the countdown, the 14 days would expire on 25th March 2025.

35. They further argue that assuming the days expired on 20th March 2025, the late filing was only 5 days. It is also submitted that the Respondent, upon service, filed his further affidavit and submissions and he was therefore not prejudiced in any way. They argue that the delay was neither inordinate nor prejudicial and that the court should not be quick to strike out pleadings. Further, that Striking out pleadings is a draconian remedy that ought to be invoked sparingly and only where clear injustice is demonstrated.

36. It is true that this court did grant the exparte applicants herein leave to file and serve their replying affidavits within 14 days on 6th march 2025 and the 14 days include public holidays and weekends. It is not true that in computing time, weekends or public holidays and weekends are excluded, except where the last day falls on a Sunday or a public Holiday. In addition, with the online e-filing, a party need not use a weekend or public holiday as an excuse. They can file their documents anytime of the day or night since the e-filing system is self-service.

37. I however note that the exparte applicant filed the replying affidavits outside the 14 days granted on 6th March, 2025. Nonetheless, when the matter came up for mention on 8th April, 2025, the applicant herein who is the respondent in the substantive proceedings, never raised any issue of the replying affidavits having been filed out of time. Mr. Arithi counsel for the applicant informed the court that they had been served with replying affidavits and further affidavits and that he had filed submissions and the exparte applicant had also served him with submissions. He stated that he did not intent to highlight and entirely relied on the submissions in support of the notice of motion dated 17/1/2025. Mr. Nyawa counsel for the exparte applicant on the other hand confirmed what Mr. Arithi had stated and stated that they were to rely on their submissions and affidavit of Emily Kinama.

38. The court then fixed the ruling date. There was no objection raised of the filing of the replying affidavits or submissions out of time and or arguments on default for the court to consider and decide whether to strike pout those documents or not.

39. It is the Applicant’s contention that the said affidavits should not be considered, having been filed out of time without leave of the court.

40. Having considered the record, the applicable law, and the procedural history of the matter, I find that the objection raised by the Applicant in final submissions is procedurally irregular and lacking in merit for the following reasons:

a. Objections must be raised timeously 41. It is a well-established principle that objections relating to the admissibility of documents, particularly on the ground of late filing, must be raised promptly, at the time of filing or at the next earliest opportunity. The Applicant did not object to the Respondents/exparte applicant’s replying affidavits at the time they were filed, nor did they raise the issue during the mention to fix this ruling date. Instead, the Applicant elected to raise the issue only in the final submissions after the court had already reserved the matter for ruling.

42. Such conduct is procedurally improper and amounts to an ambush. Furthermore, final submissions are not the proper forum for raising new issues or objections, especially where they go to procedural compliance. Raising an objection at such a late stage denies the affected party a fair opportunity to respond and deprives the court of the benefit of fully argued positions on the point.

b. Waiver and acquiescence 43. By failing to object to the filing of the replying affidavits when they were filed and subsequently participating in the proceedings without protest, the Applicant is deemed to have acquiesced to the inclusion of the said affidavits on record. Thus, where a party takes no issue with the late filing of documents at the appropriate time and proceeds to respond or participate in the proceedings, they cannot later object to the same documents at the submission stage. Litigation must be conducted fairly and openly, and parties must not 'spring surprises.'

c. Court’s discretion under the Civil Procedure Rules 44. Under Order 50 Rule 6 of the Civil Procedure Rules, and guided by the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, this court retains unfettered discretion to enlarge time even after the period has expired. However, the exercise of that discretion must be predicated on an application or at least on an opportunity for both parties to be heard. No such application was made in this instance, and no objection was previously raised to invite the court’s inquiry into whether the documents should be struck out or admitted. The issue having only been raised in submissions deprives the court of the occasion to exercise its discretion judicially.

d. Substantive justice over procedural technicality 45. Finally, Article 159(2)(d) of the Constitution obliges this court to administer justice without undue regard to procedural technicalities. In the absence of demonstrated prejudice to the Applicant, and in the interest of determining the matter on its merits, I am satisfied that the late filing of the Respondents’ replying affidavits, does not in itself justify their exclusion at this stage. Furthermore, the delay of 5 days was not inordinate and justice can still be done to both parties by each having an opportunity to be heard. See Gitau v Kenya Methodist University Kemu [2021] KEHC 322 (KLR) eKLR.

46. In the end, I find that the Applicant’s objection to the replying affidavits, having been raised for the first time in final submissions and after the matter was reserved for ruling, is improperly before the court. The said objection is hereby declined, and the replying affidavits shall remain on record and be considered in the determination of the substantive issues.

47. The next question is whether or not to set aside the court’s judgement of 31st December 2024. The decision whether or not to set aside a judgement is discretionary which discretion is intended to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. This is what the Court of Appeal held in the case of Shah v Mbogo & Another [1967] EA 116.

48. In this case, the grounds upon which the application to set aside the judgement of the court dated 31st December 2024 is predicated are that the Respondent was not served personally despite having been sued personally and therefore he was denied the right to a fair hearing as guaranteed under Article 50(1) of the Constitution.

49. The Court of Appeal in the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) held as follows:“We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment 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 one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd [1975] EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v Election Tribunal, Koteh, AIR 1955 SC 664, at 711:“[T]here 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.”

50. The Court further stated as follows:“The approach of the courts where an irregular default judgment has been entered is demonstrated the following cases. In Frigonken Ltd v Value Pak Food Ltd, HCCC NO. 424 of 2010, the High Court expressed itself thus:“If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae. Such a judgment is not set aside in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process.”

51. In the instant case, the Respondent has argued that he was not personally served despite having been sued personally. He also challenges the email address that was used by the Applicants on grounds that the same did not belong to him. It his case that the pleadings in the instant case were served upon the registry and not the legal department.

52. The exparte Applicants on the other hand maintain that service was effected upon the Respondent both physically and through email. They also argue that physical service is evidenced by the rubber stamps on the copies of the pleadings and notices that were served upon the Respondent’s legal department. The court observes that the process servers were never called for cross-examination to challenge their depositions on how they effected service.

53. In the case of Law Society of Kenya & 3 others v Inspector General of Police & 4 others [2025] KEHC 236 (KLR) relied on by the exparte Applicants, the court observed as follows:“From the affidavit of service sworn by Mr. Noel Odiwour one of the petitioners’ advocates on 13th January 2025, service on all the respondents was done by email. The affidavit of service listed the email addresses used to effected that service. The listed emails appears in the order of the parties. The 1st and 2nd respondents were served through nps@nationalpolice.go.ke and director@cid.go.ke respectively, which they have disputed, arguing that those email addresses are not their last confirmed email addresses. They have relied on rule 22B of Order 5 of the Civil Procedure Rules to argue the rule requires service by email to be done through the last confirmed email address of the person being served."

35. Rule 22B provides as follows:1. Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.2. Service shall be deemed to have been effected when the Sender receives a delivery receipt.3. ….4. An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service. The rule requires service by electronic mail to be sent to the defendant’s “last confirmed and used E-mail address.”

36. My reading of the rule is that the last confirmed and used email address refers to a situation where parties have been in communication through email prior to filing of the suit so that service will be effected to the last email address used in such communication. The last used email address is deemed to be the confirmed email address.

37. However, where there has not been communication between the parties, like in this case, there cannot be the last confirmed and used email address as required by the rule. That should not mean a party cannot be served by email as long as the party serving demonstrates that the email address used belongs to the party served, or the party served can be found through the email used. A strict reading of the rule would make it impossible to serve a respondent thus, defeat justice. Where the email address is doubtful, the rules provide for other modes of service which can be resorted to. Service by email should not be attempted unless the party serving is pretty sure that the email being used belongs to the party being served.

38. In this case, the 1st and 2nd respondents, as the petitioners correctly argued, are public officers holding public offices whose contacts, including emails addresses, are publicly available. It is not necessary that there should have been communication between the parties so that there can be a last confirmed and used email address. The publicly available email address can be used as long as it belongs to that officer, office or the institution being served.

54. Applying the principles set out in the above case, this Court finds that service was properly effected upon the respondent. The email used was identified as an official address upon a reasonable search, and although the Respondent argues that the rubber stamps evidencing service is not for the legal department, he does not dispute that the registry in question falls within his office which he has since vacated through resignation. There is no evidence that the applicants’ process server could have manufactured the acknowledgment rubber stamp at the respondent’s former offices registry. The objection to service is therefore without merit.

55. It is not lost to this court that the learned Judge Ngaah stated in his judgment sought to be set aside was satisfied that the respondent herein had been served but that he had not filed any response to the application and of the three interested parties, only the 1st interested party filed a replying affidavit. In my view, the Judge was satisfied that the respondent who was ahigh ranking officer in this country, was served before proceedings to hear and determine the matter, the absence notwithstanding. The applicants could not drag the respondent to court other than through service.

56. In this case, having examined the entire file in the CTS, and especially the depositions by the applicants’ counsel and their process server on how they effected service upon the respondent at his well-known offices, I am satisfied that the applicants never stole a match on the respondent and that he deliberately failed to appear and file a response to the Notice of Motion application seeking judicial review orders against him.

57. In Shah v Mbogo and James Kanyiita Nderitu v Ghikas, the Court reaffirmed that discretion to set aside a regular default judgment must be exercised judiciously, considering factors such as the reason for default, delay, and prejudice. In contrast, irregular default judgments that is those entered without proper service are set aside as of right.

58. In this case, the Court finds that the service was regular and effective, as supported by the reasoning in Law Society of Kenya & 3 others v Inspector General & 4 others [2025] KEHC 236, which allows service by publicly available official email addresses where there is no prior confirmed address.

59. Indeed, service of court process upon public officials such as Inspector General of Police takes a different route from service upon ordinary civilian citizens or individuals. See Chacha Mwita J in HCCPET E009 of 2025 between Justus Mutumwa, Karani Muema and 3 others v ODPP and Attorney General.

60. Effecting service of court documents upon the Inspector General of Police in Kenya involves certain procedural sensitivities and security considerations, particularly in contexts of public unrest, such as strikes, protests, or riots. Therefore, to expect that a process server would track down an Inspector General of Police to hand over to him the court documents personally, may not be practicable. This is because of the fear or public perception of police hostility which can discourage individuals or process servers from approaching such a high ranking official.

61. There is also Security risk. Process servers might feel unsafe approaching armed officers or stations for fear of being harassed.

62. There is also physical inaccessibility of such high-ranking officials.

63. Finally, I observe that the respondent had filed a Notice of appeal dated 10th January 2025 before filing this dismissed application. He therefore has other remedies of appeal available to him to pursue the merits of the judgment delivered on 31st December, 2024.

64. Accordingly, the court finds and holds that the application dated January 17, 2025 seeking to set aside the judgment delivered on December 31, 2024 lacks merit. It is hereby dismissed.

65. Each party bear their own costs of the application.

66. Save for the costs awarded in the main motion, which the applicants are at liberty to claim or waive, this file is closed.

67. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 21ST DAY OF MAY, 2025R.E. ABURILIJUDGE