Amayi Okumu Kasiaka & 2 others v Moses Okware Opari & another [2013] KECA 69 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that to set aside a default judgment, you must prove valid triable issues and challenge service properly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misdirected herself in relying on the affidavit of service where the process server was not cross-examined
- 2.Whether the appellants disclosed a bonafide triable issue in the affidavit supporting their application to set aside the ex-parte judgment
- 3.Whether the application to set aside the judgment was incompetent for having been brought under a general provision of the Civil Procedure Rules
Key legal issues
#Validity of service where the process server was not cross-examined
The learned Judge was entitled to accept the process server's affidavit of service, which could only be impeached by cross-examination, a course the appellants did not take.
The parties disputed service of summons to enter appearance. The judge considered the affidavits of the parties and the process server, found the affidavits of service contained vivid details of date, time, place and mode of identification, and held they were reliable and satisfactory evidence of service. The appellants' failure to cross-examine the process server meant the affidavit stood unchallenged. The appellate court found no misdirection or consideration of extraneous factors.
Whether a draft defence must be annexed to an application to set aside a regular judgment
The learned Judge misdirected herself in requiring a draft defence to be annexed; a defence may be demonstrated in the supporting affidavit, but the misdirection caused no failure of justice because the affidavit disclosed no triable issue.
Drawing on the Supreme Court Practice and English authority, the court held that for a regular judgment an affidavit of merits is required, and it may be by way of affidavit showing facts showing a defence on the merits. However, since the judge in fact considered the supporting affidavit and correctly found it raised no bonafide triable issue - the alleged lack of Land Control Board consent not amounting to a defence - the misdirection was not fatal and the discretion was properly exercised.
Whether the application was incompetent for invoking a general provision of the Civil Procedure Rules
The point, though initially raised, was not ultimately urged; in any event the judge considered the application on the basis that the correct provisions had been invoked and made no finding of incompetence.
The judge had remarked at the end of her ruling that the application was brought under a general provision of section 3A of the Civil Procedure Rules, but she nevertheless determined it on its merits under the correct provisions. No finding of incompetence was made, so the ground failed even if it had been pressed.
Legal principles established
#- Once a judgment is regular, an applicant seeking to set it aside must show the merits of the defence, which may be demonstrated by affidavit and need not be annexed as a draft defence.
- An applicant to set aside a regular judgment need only show bonafide triable issues, not a likelihood of success.
- An appellate court will not interfere with a judge's exercise of discretion absent misdirection or consideration of irrelevant factors.
- An affidavit of service that is not impeached by cross-examination of the process server may be accepted as satisfactory evidence of service.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C. C.C. No. 11 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Constitution and the Appellate Jurisdiction Act; the judgment does not cite the specific provision.
Relief refused
#Setting aside of the ex-parte judgment entered against the appellants
The learned Judge properly exercised her unfettered discretion; the appellants failed to demonstrate a bonafide triable issue and the service of summons was found valid
Costs
Appeal dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite law that once the Judgment is regular, before it is set aside, the applicant ought to show merits of the defence.
the Court did not need to be satisfied that there was a real likelihood that the defendant would succeed, but merely that the defendant had bonafide triable issues.
The learned Judge expressed the view that the affidavit of service could have been impeached if the process server was cross-examined, a course which the appellants failed to take.
For the above reasons, we have come to the conclusion that the learned Judge having exercised her unfettered discretion properly, we cannot interfere. We find no merit in this appeal and dismiss it with costs.
Issues in the judgment
#Citations of English cases in the quoted Supreme Court Practice passage appear internally inconsistent with their reported years (e.g. Farden v Richter [1989] 23 QBD 124; Hopton v Robertson [1984] WN), likely typographical errors in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amayi Okumu Kasiaka & 2 others v Moses Okware Opari & another [2013] KECA 69 (KLR)", Case Analysis (2013). Civil Appeal No. 15 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/69/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.