Alphonis Samuel Makomere v Sammy Inguvi Isigi
The bottom line
#Kenya's Court of Appeal set aside a default judgment because the defendant was never properly served, restoring his right to defend the case at a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons to enter appearance was properly effected on the appellant
On balance service was not properly effected; the misdescription of the appellant's home and the unexplained identification by the process server cast credible doubt on the affidavits of service, rendering the default judgment irregular.
The appellant demonstrated a misdescription of his home in the affidavits of service - a difference between two sub-locations, not merely adjoining villages - and credibly questioned who pointed him out to a process server who did not know him. Once service was credibly impugned, the burden shifted to the respondent to prove it, perhaps by calling the process server. That burden was not discharged, so the judgment was irregular and had to be set aside as of right.
Whether the draft statement of defence raised triable issues
The draft defence raised triable issues as to who breached the contract and whether any breach was a total breach warranting rescission and vacant possession; finding otherwise was a reversible error.
The suit was intensely fact-driven at two levels: who was in breach, and whether the breach amounted to a total breach justifying rescission. The draft defence pleaded that the appellant performed his obligations and that the respondent was in breach. The applicable standard is not prospects of success but whether an issue is prima facie arguable. The defence met that standard, and the application was brought without delay or overreaching conduct.
The standard of review applicable to the trial court's discretionary ruling
An abuse-of-discretion standard applies; this Court interferes only where the decision lies beyond the range of permissible outcomes, while reappraising the evidence as a first appellate court per Selle v Associated Motor Boat Co.
A trial judge is entitled to exercise her discretion on whether to set aside a default judgment, with the outer limits contained in Order 10 of the Civil Procedure Rules. Reversal is permissible only where the decision lies beyond the pale of reasonable justification. In reviewing the affidavits and evidence placed before the trial court, the Court adopts the first appellate duty of independent evaluation and conclusion.
Legal principles established
#- Where a default judgment is entered against a defendant who was not served or not properly served, it is irregular and must be set aside as of right, without inquiry into triable issues or delay
- Where the details of service are credibly impugned, the burden shifts to the party claiming service to prove that service was in fact effected, potentially by putting the process server in the witness box
- A triable issue need not be likely to succeed; it suffices that it is prima facie arguable and ought to be adjudicated at trial
- A first appellate court reviews a trial judge's discretionary decision on setting aside default judgment under an abuse-of-discretion standard, interfering only where the decision is capricious, arbitrary, in plain error, or not in accordance with law or logic
Court orders
#- 1.Appeal allowed with costs
- 2.Default judgment entered together with any consequential orders flowing therefrom set aside
- 3.Suit remanded back to the Environment and Land Court to be heard by a judge other than N.A. Matheka, J.
- 4.Directions to be given for the re-hearing of the suit on a priority basis
- On appeal from
- Environment and Land Court
- Kakamega High Court ELC No. 26 of 2016 (ruling of 20th November 2018)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)[2025] KEELRC 164 (KLR)30 Jan 2025
- Masscon Construction Company Limited v Emojong (Appeal E174 of 2024) [2025] KEELRC 164 (KLR)[2025] KEELRC 164 (KLR)30 Jan 2025
Cite this brief
#Cite this brief
Caselaw, "Alphonis Samuel Makomere v Sammy Inguvi Isigi", Case Analysis (2024). Court of Appeal at Kisumu (appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1807/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.