Wasike v BOM the Salvation Army Kabuchai Girls & another (Civil Suit E177 of 2025) [2025] KEMC 411 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is an error apparent on the face of the record in the entry of interlocutory judgment against the 1st Defendant
- 2.Whether service of summons and pleadings upon the 1st Defendant, a public entity, was effected in accordance with section 13 of the Government Proceedings Act
- 3.Whether an irregularly entered interlocutory judgment ought to be set aside
Key legal issues
#Error apparent on the face of the record
The entry of interlocutory judgment against the 1st Defendant was a clear error apparent on the face of the record correctable suo motu
The court, while preparing the ruling on the application to set aside, noticed that service had not complied with the Government Proceedings Act. Relying on Nyamogo & Nyamogo Advocates v Kago, it held that where an error on a substantial point of law stares one in the face with no two opinions possible, it is an error apparent on the record and may be corrected suo motu under sections 99 and 152 of the Civil Procedure Act, guided by the maxim actus curiae neminem gravabit.
Service on a public entity
Service upon the 1st Defendant, a public entity managing a public school, had to be effected through the Attorney-General; service at the school secretary's office was improper
The court found it undisputed that the 1st Defendant is a public entity managing a public school, citing Cheboi v Board of Management Kamoi Secondary School where Keli J held that such a school is a government institution to which the Government Proceedings Act applies. Section 13 of that Act requires service on the Office of the Attorney-General. The affidavit of service showed service was effected through a secretary at the school, rendering the service defective and the resulting interlocutory judgment irregular.
Setting aside irregular interlocutory judgment
An irregular ex parte judgment must be set aside as of right, not as a matter of discretion
Relying on Mwala v Kenya Bureau of Standards, the court distinguished regular from irregular ex parte judgments. Where the judgment is irregular, for instance for want of proper service of summons to enter appearance, it ought to be set aside ex debito justitiae because a court should never countenance an irregular judgment on its record. Having found the service defective, the interlocutory judgment was set aside and the defence deemed properly filed upon payment of fees.
Legal principles established
#- Where an ex parte judgment is irregularly entered, for instance for want of proper service, it must be set aside as of right and not as a matter of discretion
- Service of process against the Government or a government entity must be effected on the Office of the Attorney-General under section 13 of the Government Proceedings Act
Court orders
#- 1.The interlocutory judgment entered against the Defendants on 03rd June 2025 and all consequential orders arising thereby are set aside
- 2.The Defendants' Draft Statement of Defence filed shall be deemed as properly filed upon payment of the requisite court fees, and the same be served upon the Plaintiff/Respondent within seven (7) days from the date hereof
- 3.The Plaintiff/Respondent to file and serve their Reply to the Defendants' Statement of Defence, if need be, within ten (10) days of service
- 4.Each party to bear their costs of the 1st Defendant/Applicant's Notice of Motion Application dated 25th June 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers to correct errors on the face of the record under sections 99 and 152 of the Civil Procedure Act
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.
The interlocutory judgment entered herein against the Defendants on 03rd June 2025 and all the consequential orders arising thereby are set aside.
Each party to bear their costs of the 1st Defendant/Applicant's Notice of Motion Application dated 25th June 2025
The consequence of the findings above is that the interlocutory judgment on record against the 1st Defendant/Applicant is irregular for want of proper service of Summons to Enter Appearance and pleadings.
Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out.
Issues in the judgment
#The judgment is styled as a ruling on the 1st Defendant's Notice of Motion dated 25th June 2025 seeking to set aside interlocutory judgment, but the court instead corrected an error suo motu and disposed of the matter on that basis; the notice of motion itself is not expressly allowed or dismissed, only costs of it are addressed
The coram shows the ruling delivered at Bungoma although the claim is a Kitale Small Claims Court matter (Kitale SCC Claim No. E173 of 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike v BOM the Salvation Army Kabuchai Girls & another (Civil Suit E177 of 2025) [2025] KEMC 411 (KLR)", Case Analysis (2025). Kitale SCC Claim No. E173 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/411/eng@2025-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.