Jackson Barchuro & 1 other v William Macharia Maina & 1 other

The affidavit of service claimed service on the defendants' clerk and by registered post to Katama Ngeywa & Co Advocates, but the certificate of posting was not exhibited and the address to which the notice was sent was not shown. The trial judge therefore had no material on which to conclude service was proper; had she considered this omission, she would have found service unestablished. The Court of Appeal was entitled to interfere with her discretionary decision on that basis.

Adopting James Kanyiita Nderitu, the Court held that where a defendant was not served or properly served, the judgment is set aside as of right; the court may even act on its own motion, and considerations of triable issues or inordinate delay do not arise because the party was condemned unheard. The right to be heard before an adverse decision is fundamental to the justice system.

The appellants asserted that the respondents' suit was barred by statute and claimed adverse possession over the property, matters requiring interrogation. The Court thus found, in the alternative, that the judge also erred in holding the defence raised no triable issues.

The Court set out the classic principles from East African Underwriters: interference is warranted where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or where the decision is plainly wrong. It found the judge failed to consider the insufficiency of the evidence of service, justifying interference.