RULING
1. By a notice of motion dated 4th July 2024, the defendant/applicant seeks to set aside the ex parte judgment delivered by this court on 15th March 2023 and all consequential orders thereto; leave to defend the case and leave to change his advocate from the firm of AGN Kamau to the firm of J.K Kiplagat & Co. Advocates.
2. The application is premised on the ground that his advocate on record, AGN Kamau, neither attended court for hearing of the case nor informed the applicant of the hearing, leading to judgment being issued against the applicant ex parte. According to the applicant, he only learnt about the judgment after the plaintiff’s advocate served him with the decree issued in this case.
3. The applicant has deponed that upon being issued with the decree, he sought the services of another advocate, J.K Kiplagat & Co. Advocates, who perused the court file and established that owing to none attendance of the applicant’s advocate on record, the case proceeded ex parte.
4. Explaining that he has a good defence to the case and that he stands to suffer irreparably if the ex parte judgment is executed against him, he will be evicted from the suit property yet he is the registered proprietor thereof and has been in occupation of the suit property for over 41 years; the applicant urges the court to grant him the orders sought.
5. The application is opposed by the plaintiff/respondent on the ground that the applicant has not offered any reason or sufficient cause for absence of his advocate in court.
6. Arguing that the absence of the defendant/applicant and/or his advocate in court is not a good reason for seeking/granting the orders sought, the plaintiff/ respondent has deponed that the defendant/applicant had on numerous occasions been served with hearing notices by himself and/or his advocate but failed to attend court for hearing of his case.
7. It is the plaintiff/respondent’s case that it was the duty of the defendant/applicant to diligently follow up his case with his advocate. Contending that the defendant/ applicant has not placed any material/evidence before court capable of showing that he was a diligent litigant, the plaintiff/respondent urges the court to dismiss the applicant’s application with costs to him.
8. Even though the defendant/applicant has not raised any issue concerning service of hearing notices to his advocate, arising from the plaintiff/respondent’s averment that the plaintiff/applicant was on numerous occasions served with hearing notices but failed to attend court, with a view of ascertaining that and considering that the issue of service is a critical factor to consider in determination of the application before court, I perused the court record and noted that the last time the defendant/applicant’s counsel attended court for hearing of the case, on 16th November 2005, a consent order was recorded in the following terms:-
“By consent the plaint in HCC No.72 of 2002 be deemed to be the plaint and the defence filed herein together with the plaint in Eldoret CMCC No.1383 of 1999 be deemed to be the defence and counterclaim...”
9. The court record, particularly the pleadings filed in Eldoret CMCC No.1383 of 1999 show that the defendant/applicant’s advocate’s address is P.O BOX 399, Eldoret. (There is no copy of the defence filed in HCC of 2002 in the court file).
10. Whilst there is no indication that the defendant /applicant’s advocate notified the court of change of his address or filed any document in court showing that his address for service is P.O Box 10038-00100 Nairobi, the court record shows that on the various occasions the case was listed for hearing, service on the defendant/ applicant’s advocate was effected through registered post to the defendant/applicant’s advocate’s last known address of service being P.O Box 10038-00100 Nairobi.
11. There were other occasions when service was served physically on the defendant/applicant’s advocates office in Nairobi. Some of those instances, for instance the service effected on 19th April 2021 was declined on the ground that the firm of AGN Kamau was not on record for the defendant in the matter. Moreover, there is no indication in the court record as to whether the plaintiff/respondent obtained leave of the court to effect service on the defendant/applicant through substituted service by way of registered service in lieu of personal service which takes precedence over all other forms of service.
12. I also note that on other occasions, service on the defendant/applicant’s advocate was effected electronically, through email to the defendant/applicant’s known email address. Whilst the latter form of service is now accepted as a form of service, there is nothing in the court record to enable the court determine the basis upon which that form of service was used as there is no notification by the defendant/applicant that the email belongs to it.
13. The court record also indicates that on occasions when notices were served by the court to the parties, service to the defendant/applicant’s advocate was effected through P.O Box 10038-10100 Eldoret and P.O BOX 399 Eldoret casting doubt as to the address of service notified to court as being the address of service for the defendant/ applicant.
14. Arising from the foregoing, I ordered/directed the plaintiff/ respondent’s advocate to clarify or offer explanation for effecting service through substitute service using the methods he used to enable the court to make an informed decision on whether or not there was proper service of hearing notices on the defendant/applicant or his advocate.
15. In response, the plaintiff/respondent’s counsel, Mercy W. Wahome, through the affidavit she swore on 22nd January 2025 has deponed as hereunder: -
• “That as per the court’s directions of 15/1/2025, I wish to address the court as hereunder:
• That first and for most, before the matter proceeded for hearing on 09/05/2022, this court was satisfied that service was effected and therefore ordered the plaintiff to proceed in the absence of the defendant;
• That it is settled law, parties are bound by their pleadings. The Defendant/Applicant in the application before the court does not dispute service of the processes in this matter.
• That it therefore goes without saying that the question of whether or not service was effected and/or was properly effected is not up for determination in the instant application.
• That secondly, there is no affidavit on record by the Advocate who has always been on record on behalf of the defendant, disputing service and/or the postal addresses used to serve processes.
• That the record will bear us witness that the Defendant/Applicant has in the application dated 04/07/2024 not disputed the numerous postal addresses and their use thereof. No law to the best of our understanding exists that bars a party from having more than one postal address.
• That in order to mitigate the high costs of litigating this matter on account of personal service and considering the fact that the defendant’s counsel who was in conduct of the matter is based in Nairobi, the plaintiff adopted different modes of service including registered post and email which by law are recognized modes of service.
• That in other words had there been denial of receipt of documents served by either registered post or email, the question of whether or not leave was sought would have arisen.
• That in the instant matter, there is no doubt and/or none has been raised as to service to warrant this court’s directions of 15/01/2025.
• That under Legal Notice No.22 of 2020 of the Civil Procedure Rules as amended in the year 2020, even a WhatsApp image sent and received by a party is deemed to be proper service.
• That in the matter at hand, service was effected through the known address of service and which fact is not in dispute.
• That we maintain that the issue of service having not been raised by the Defendant, this court would have no business delving in a matter which is not up for determination and if that were to happen, it will amount to misdirection by this court which will lead to a miscarriage of justice.
• That this is a suit that was instituted in the year 1999. The defendant did hire an advocate to represent him and the defendant has all along been aware of the existence of this matter in court and elected NOT to follow up the matter until he was served with execution documents.
• That it is important at this stage to point out that cases belong to litigants and not their advocates and the defendant having failed to do his part has himself to blame and the issue of service raised by court is neither here nor there.
• That the defendant having ignored the existence of this matter cannot turn around at the eleventh hour to seek the setting aside of a legitimate judgment that has been delivered in favour of the plaintiff who has been in court for 25 years now.
• That it is our considered position that the material available in the court file and/or on record is sufficient and/or adequate for the determination of the pending application.
• That over the years this matter has come up severally in court. The plaintiff took the initiative as required by law to always ensure notice is given to the defendant or his counsel but they ignored to participate in the proceedings and therefore if at all the defendant’s counsel failed to attend to the matter as alleged then the defendant has a legal recourse in law to sue the counsel.
• That the affidavits of service on record which have not been questioned or challenged by the defendant in the instant application are sufficient proof of knowledge of; existence of the matter in court; and prosecution of the matter and therefore there can be no better evidence of service than an affidavit of service as required by law.
• That taking into account the foregoing, the plaintiff prays the application be determined on the based on the material on record so that the plaintiff can have an opportunity to enjoy the fruits of the judgment that was determined in his favour on 15/03/2023.
• That needless to say litigation must come to an end and prolonging the determination of the instant application is not only unfair but against the spirit of the Constitution of Kenya as to expeditious disposal of the matter without undue regard to technicalities.
• That we pray that the application before court be determined so as to bring this matter to an end.”
16. It is noteworthy that after the court issued the order /directive referred to herein above, some documents that were not in the court file at the time I gave the directions resurfaced; these include the Memorandum of Appearance and the statement of Defence filed by the defendant’s advocate in Eldoret High Court No.72 of 2002. The documents indicate that the defendant’s advocate’s notified address of service is P.O Box 399 Eldoret.
17. There was no notification of change of address to the court or the plaintiff to warrant service of summons by the plaintiff on what he describes in his affidavit of service as the last known address of service of the defendant’s advocate. There was also no notification of the defendant’s email address to court to warrant use of the email address used by the plaintiff to purportedly effect service on the defendants.
18. Despite having been accorded an opportunity to account for the use of the address he purportedly used to effect service on the defendant, the plaintiff/ respondent’s advocate failed to convince the court that there was justifiable cause or reason to use the mode of service she used to effect service on the defendant’s advocate. It emerged that leave of court was not obtained to effect service on the defendant through the purported last known address.
19. The concept of use of the last known address to serve hearing notices, particularly in the circumstances of this case is strange as the defendant had entered appearance and provided his address of service. That is the address of service that the plaintiff/respondent ought to have used to effect service of hearing notices on the defendant, unless the defendant had served him with a notice of change of address. In that regard, see the case of Portman’s Bridge Limited & another v. Kigio Group Company Limited (Environment & Land Case 30 of 2018)(2023)KEELC 21611 (KLR) (16 November 2023) (Ruling), where L.A Omollo J, stated:-
“I appreciate the rather stringent requirements of proof of service of summons for the reason that it is the initial information given to a defendant of the fact of a suit having been instituted against it. These stringent rules help the court to ensure that a person is not condemned unheard.
Once summons have been served and acknowledged a difficult hurdle, in my view, has been surmounted. Subsequently, it is hoped that the Defendant shall enter appearance. When appearance is entered, the Defendant informs the court and the Plaintiff or Counsel appearing for the Plaintiff of its address of service for purposes of the suit. Subsequently, this is the address that will be used.
My considered view is that whenever the Defendant is served using this address, it shall be sufficient for the court to note that it is the same address that was provided by the Defendant when it entered appearance.
If the Defendant changes his/ her/ its address, it shall be incumbent upon such Defendant to notify the court and other parties of such change. This is the practice in respect notice of change of advocates...”
20. The principles that undergird an application for setting aside an exparte judgment were discussed/addressed by the Court of Appeal in the case of CMC Holdings Ltd vs. Nzioki [2004] KLR 173 thus:-
“In an application for setting aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant’s unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgment was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the decision of the learned magistrate in dismissing the application for setting aside the ex parte judgment is that in so dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgment, the Court must consider not only the reasons why the defence was not filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex parte judgment. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not considered at all and indeed could not be considered without the appellant’s input...What the Trial Court should have done when hearing the application to set aside the ex parte judgment was to ignore her judgement on record and look at the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the appellant’s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgment so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.”
21. In the case of Remco Limited vs. Mistry Jadva Parbat & Co. Ltd. & 2 Others Nairobi (Milimani) HCCC No. 171 of 2001 [2002] 1 EA 233, the court set out the principles guiding setting aside ex parte judgments as follows:
(i). if there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular one, which the Court must set aside ex debito justitiae (as a matter of right) on the application by the defendant and 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 itself.
(ii). if the default judgment is a regular one, the Court has an unfettered discretion to set aside such judgment and any consequential decree or order upon such terms as are just as ordained by Order 9A rule 10 [now Order 10 Rule 11] of the Civil Procedure Rules.
22. In Mureithi Charles & another v. Jacob Atina Nyagesuka (2022) eKLR Odunga J. (as he then was) held:
“In considering whether or not to set aside a default judgment, a judge has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for the judge…”
23. In applying the above principles to the circumstances of this case, it is not in dispute that service was on the various occasions that the matter came up for hearing effected on the defendant through his advocate on record, who despite service failed to attend court to represent the defendant. As pointed out herein above, service was effected by substituted service (registered post) to the defendant’s advocates last known address of service that the plaintiff cites as P.O Box 10038-00100 Nairobi.
24. The mode of service used to effect service on the defendant raises a question/issue of the law, namely, how should service be effected in circumstances where a defendant has entered appearance and notified the court and the opponent about their address of service? ls it to the notified address of service or to the last known address as happened in this case?
25. In answering that question, I adopt the decision in the case of Portman’s Bridge Limited & Another v. Kigio Group Company Limited supra, where the court held that where a defendant had entered appearance and notified the court and the plaintiff about his address of service, unless notified of change of address of service, it is that address of service which ought to be used to effect hearing notices and other court processes on the defendant and/or his advocate.
26. In the circumstances of this case, the plaintiff effected service on the defendant on what he calls the last known address. Despite being given an opportunity by the court to offer an explanation for reasons for use of that address, the plaintiff was unable to offer any satisfactory explanation.
27. Although the issue of service was not raised by the parties, the court as the custodian of the court record has a duty to satisfy itself that proper service was effected on the party seeking to set aside ex parte proceedings or judgment.
28. In the circumstances of this case, where the plaintiff effected service on the defendant using an address of service different from that notified to court and himself as the defendant’s address of service, the plaintiff cannot be heard to claim that the issue of service is not in contention yet the improper service could be the very reason why the defendant and/or his counsel may not have attended court for hearing of the case.
29. I have perused the pleadings filed by the defendant namely, Plaint dated 29th July 1999 and received on 19th November 2002 filed in Eldoret SPMC 1383 of 1999 and the statement of Defence dated 26th August 2002 filed in Eldoret HCC No.72 of 2002, which were adopted as the defendant’s Defence and Counterclaim. I am satisfied that they raise triable issues which the defendant ought to be afforded an opportunity to address in their merits. I have also taken into account that the defendant is the registered owner of the suit property. By operation of law, under Section 26 of the Land Registration Act 2012, the court is obligated to consider the defendant as the prima facie owner of the suit property. The defendant has also been in use and occupation of the suit property for a long period of time. Before he can be deprived of his right to the suit property, this court has to be satisfied that there exist good grounds for doing so. None appearance in court to defend the case, in the circumstances of this case is not a good ground for denying the defendant to defend the title he holds in respect of the suit property.
30. Concerning the plaintiff’s contention that the defendant’s remedy lies in suing his advocate for negligently handling his case, it is the considered view of this court that such remedy may not be effective in the circumstances of this case as it may not cure the fact that the defendant may lose his right to the suit property arising from negligence or mistake of his counsel.
31. Regarding the conduct of the suit, I have looked at the court record and established that there were long periods of inaction in the case, sometimes spanning more than 5 years (in fact at some point the plaintiff’s case had abated for more than 5 years before it was revived).
32. Owing to the long periods of inaction by the parties, I do not consider the delay in filing the instant application for setting aside the ex parte judgment of this court to be so in ordinate that it warrants denying the applicant the orders sought. The prejudice if any to be suffered by the plaintiff is, in my view curable by award of costs.
33. In view of the foregoing, I am inclined to exercise the discretion vested in this court in favour of the defendant /applicant. Consequently, I set aside the judgment of this court delivered 15th March 2025 and all consequential orders therefrom. I also allow the firm of J.K Kiplagat & Company Advocates to come on record on behalf of the defendant. The prayer for leave to defend the suit is denied as there is a defence and counterclaim on record. Nevertheless, the defendant may file amended pleadings within seven (7) days from the date of this ruling, if need be.
34. As regards costs, being of the view that the defendant/applicant is partly to blame for failure to follow up the case with his advocate on record, I condemn him to pay throw away costs to the plaintiff’s capped at Kshs. 40,000/-.
35. Orders accordingly.
Dated, signed and delivered at Iten this 13th day of February, 2025.
Ruling delivered virtually in the presence of;-
Ms. Wahome holding brief for Ms. Odwa for the plaintiff/respondent
Ms. Cherop holding brief for Mr. Kiplagat for the defendant/applicant
Court Asst.: Christine