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Court of AppealDismissedCivil Appeal No. 176 of 2006

Josphat Njoroge Thaara v Peter Njoga [2011] KECA 89 (KLR)

Court of Appeal
2 December 2011
SBS. E. O. BosirePWP. N. WakiDAD. K. S. Aganyanya
1,461 words in judgment
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The bottom line

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The Court of Appeal ruled that serving court papers on an adult family member counts as valid service, and waiting 21 years to challenge a judgment is too long.

What this practically means

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Executive summary

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The appellant sold 0.85 of an acre from LR No. Limuru/Ngecha/779 (referred to elsewhere in the judgment as 799) to the respondent under an agreement dated 8th July 1982 for Kshs.42,500, part of the price being discharged by the respondent directly to the appellant's bank. The respondent sued for specific performance when the transfer was not effected. Although the plaint was served on the appellant's wife in February 1983, the appellant neither entered appearance nor filed a defence, and on 4th May 1983 Patel, J. entered ex parte judgment ordering transfer of the portion, which was duly executed; the respondent then sold the portion to a third party. In October 2004 - over 21 years after judgment - the appellant applied to set aside the ex parte judgment, and Khamoni, J. dismissed that application on 8th May 2006, finding inordinate delay and noting the land was now owned by a non-party. The appellant appealed on six grounds, principally alleging defective service and misdirection in the exercise of discretion. The Court of Appeal (Bosire, Waki and Aganyanya, JJ.A.) dismissed the appeal in its entirety. It held that service on the wife, an adult member of the family, was good service under Order 9 rule 12 of the Civil Procedure Rules; that the Judge correctly exercised his discretion; and that, given the 21-year delay and the disposal of the land to a third party not before the court, there was no triable issue warranting setting aside the judgment. The Court invoked the maxim that equity does not aid the indolent and dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was properly served with summons to enter appearance and the plaint
  2. 2.Whether the learned Judge's discretion in refusing to set aside the ex parte judgment was wrongly exercised
  3. 3.Whether the delay of over 21 years in applying to set aside the ex parte judgment was excusable

Key legal issues

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01

Validity of service of summons on the appellant's wife

Holding

Service on the appellant's wife, an adult member of the family, was good service under the Civil Procedure Rules, defeating ground (1) of the appeal

Reasoning

The court found it undisputed that the plaint was served on the appellant's wife on 24th February 1983. Under Order 9 rule 12 of the Civil Procedure Rules, where personal service is impracticable, service on an adult member of the household suffices. The court rejected the contention that the plaint was not served together with the summons, holding service valid and the ex parte proceedings properly founded.

p. 2
02

Exercise of discretion to set aside an ex parte judgment after inordinate delay

Holding

The Judge correctly declined to set aside the 1983 ex parte judgment because the application came 21 years late, was an afterthought, and the suit land had been sold to a third party not party to the proceedings

Reasoning

The Court held the Judge was aware of his discretion and exercised it judicially. The delay of over two decades, the appellant's engagement in other proceedings in other courts, and the fact that the land was in the hands of a third party not joined to the proceedings meant no triable issue warranting setting aside was disclosed and no justice would be achieved by granting the application.

p. 3

Legal principles established

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  • Service of summons on an adult member of the family, such as the defendant's wife, constitutes good service under Order 9 rule 12 of the Civil Procedure Rules where the defendant cannot be personally served
  • An inordinate and unexplained delay in applying to set aside an ex parte judgment, especially where the subject property has passed to a third party, justifies refusal of the application; equity does not aid the indolent

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority

Wrote the judgment

PW
majority

Wrote the judgment

DA
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 12 of 1983
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (not expressly cited in the judgment text)

Relief refused

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Setting aside of the High Court ruling dismissing the application to set aside the ex parte judgment

Service on the appellant's wife was good service; the delay was inordinate; the land had been transferred to a third party not before the court; no triable issue was shown

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under Order - rule 12 of the Civil Procedure Rules service upon the wife – an adult member of the family was good service.
p. 2substituted service on adult family member
We are of the view that the maxim “equity does not aid the indolent” applies perfectly well in the appellant’s present situation.
delay and equity in setting aside ex parte judgments
This appeal fails and is hereby dismissed with costs.
p. 3disposition

Issues in the judgment

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minor

The title/heading describes the appealed ruling as dated 8th May, 1983, but the body of the judgment and the quoted ruling state it was delivered on 8th May, 2006 by Khamoni, J.

minor

The suit land is identified as Limuru/Ngecha/779 at the start of the judgment but as Limuru/Ngecha/799 in the quoted judgment of Patel, J. and in Khamoni, J.'s ruling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josphat Njoroge Thaara v Peter Njoga [2011] KECA 89 (KLR)", Case Analysis (2011). Civil Appeal No. 176 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/89/eng@2011-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.