Jonyo v Kandiawo & another (Environment and Land Appeal 7 of 2021) [2024] KEELC 4241 (KLR)
The bottom line
#A Kenyan court set aside a land appeal judgment entered without proof of service, confirming that no one can be judged unheard, even after judgment.
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 applicant's counsel is properly on record.
- 2.Depending on the outcome in (i) above, is the instant application merited?
Key legal issues
#Whether the applicant's counsel is properly on record without leave under Order 9 Rule 9
Order 9 Rule 9 is inapplicable because the applicant never had an advocate on record; he did not participate in the trial suit or the appeal, so counsel is properly on record.
Order 9 Rule 9 governs change of advocate or a party electing to act in person after judgment where an advocate was previously engaged. Since the applicant had no legal representation at the trial court or on appeal, having taken no part in either, the rule has no application. The respondent's objection based on Order 9 Rule 9 therefore fails.
Whether the court had jurisdiction, being functus officio after delivering judgment on 21st September 2022
The court is not functus officio; under Order 42 Rule 23 it retains jurisdiction to re-hear an appeal that was heard ex parte against a respondent who shows non-service or sufficient cause.
Order 42 Rule 23 confers on the appellate court power to re-hear an ex parte appeal where the respondent satisfies the court that notice was not duly served or that he was prevented by sufficient cause from appearing. The absence of any affidavit of service or evidence of mention and hearing notices means the ex parte judgment could be revisited; functus officio does not arise.
Whether the ex parte judgment dated 21st September 2022 should be set aside
Yes. No affidavit of service was availed and there is no indication the applicant was served with the memorandum of appeal, record of appeal, submissions or hearing notices; the judgment is irregular and must be set aside as a matter of right.
Applying Order 42 Rule 23 and the regular/irregular default judgment distinction in James Kanyiita Nderitu and Yooshin Engineering, a judgment entered without proper service is irregular and is set aside ex debito justitiae, irrespective of the merit of the defence. The record discloses no proof of service of the appeal documents or hearing notices, so the ex parte judgment falls to be set aside.
Legal principles established
#- Where an appeal is heard ex parte and the respondent shows the notice was not duly served or that he was prevented by sufficient cause from appearing, the court shall re-hear the appeal on such terms as it deems fit.
- An irregular default judgment, entered against a party not served or properly served, must be set aside as a matter of right.
- Order 9 Rule 9 does not apply where the party had no prior advocate on record, having not participated in the proceedings.
Court orders
#- 1.Application allowed in terms of prayer numbers 3 and 5 (setting aside the ex parte proceedings and judgment dated 21st September 2022 and permitting the applicant to respond to the appeal)
- 2.2nd respondent/applicant to file and serve his submissions and evidence in response to the appeal within 14 days, failing which the orders shall automatically lapse
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Oyugis
- ELC Suit No. 6 of 2019
- Jurisdiction invoked
- Order 42 Rule 23 of the Civil Procedure Rules, 2010 (re-hearing of ex parte appeal); Sections 1A, 1B, 3A Civil Procedure Act
Relief refused
#Prayer (d): direction that ELC Suit No. 6 of 2019 before the Principal Magistrate Oyugis be heard afresh on merit
There is a pending appeal before the ELC, so remitting the original suit is untenable
Costs
Costs of this application to abide the outcome of the appeal.
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.
Therefore, this court is seized with jurisdiction to hear and determine the instant application with regards to its judgment delivered on 21st September 2022.
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance.
where the judgement is irregular in the sense that service was not efiected, or that the judgement was improperly or prematurely entered, then such a judgement is irregular and must be set aside as a matter of right.
Consequently, the application by way of Notice of motion dated 21st November 2023 hereby succeeds in part and is allowed in terms of prayer numbers 3 and 5 and as indicated in paragraphs 1(c) and (e) hereinabove.
Afortiori, I hereby direct the 2nd respondent/applicant herein to file and serve his submissions and evidence in response to the instant appeal within 14 days from the date of this ruling, failure to which the orders granted herein shall automatically lapse.
Costs of this application to abide the outcome of the appeal.
Issues in the judgment
#The judgment gives inconsistent dates for the ex parte judgment: the application and grounds describe it as dated 21st September 2022, but the court's own holding dates it 21st November 2022.
Issue (ii) as framed appears truncated in the judgment text ('ii.' with no text preceding the following paragraph).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonyo v Kandiawo & another (Environment and Land Appeal 7 of 2021) [2024] KEELC 4241 (KLR)", Case Analysis (2024). ELC Appeal (Homa Bay) — ruling on Notice of Motion dated 21st November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4241/eng@2024-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.