Examination Of Process Server
4.Pursuant to prayer four (4) of the Application, the process server, one George Mumali was called to testify on service. He was cross-examined on his Return of Service sworn on 06/06/2018. This took place on 25/05/2022. In summary, he recalled that upon receipt of an Originating Summons and accompanying documents from Messrs. Bungei & Murgor Advocates, he effected service on the Defendant on 05/05/2018. When he did so, he was accompanied by the 1st Plaintiff. He proceeded to Ngonyek area along Kitale - Kachibora road to the homestead of the Defendant. The 1st Plaintiff and the Defendant were immediate neighbours.
5.His testimony was that he arrived at the said homestead at 12:56 p.m. where he was received by the Defendant’s wife, one Selina Cheruto Sitienei. He was informed by the 1st Plaintiff that she was the Defendant’s wife. He introduced himself and explained the purpose of his visit. Since the Defendant was absent, she called him using her phone and he spoke with the process server and instructed him to leave the documents with the wife. She acknowledged receipt by retaining the Defendant’s copy on the promise that she would hand over the documents to him. She, however, did not sign on the process server’s copy.
6.In explaining why he did not personally serve the Defendant, the process server relied on Order 5 of the Civil Procedure Rules which allows an agent to accept service on behalf of the party to be served. He stated that the Defendant authorized his wife to accept service on his behalf. He produced his practice licence of the year 2018 to show that he had authority to effect service as a Process Server at the time, and it was annexed to the request for judgment. Later on, he served the Defendant with a hearing notice and a notice to show cause.
7.Save for the cross-examination of the process server, the Application was disposed of by way of written submissions. According to the Defendant, he was only aware of the suit at execution stage. He was not personally served with any pleadings or notices in this matter. He urged this Court to exercise its discretion to allow this Application to avoid a litigant from being shut out unheard. He submitted that the failure to respond to the Originating Summons was not his fault but that of the Plaintiffs who failed to serve him. He maintained that his Replying Affidavit disclosed a reasonable defence. Additionally, he submitted that if the orders sought were granted, the Plaintiff stood to suffer no prejudice. Finally, he stated that he only discovered that a suit had been filed when he conducted a search at the Land Registry. For this argument, he submitted that he had explained the delay in filing the present Application.
8.On the part of the Plaintiffs, it was submitted that the Replying Affidavit contained mere denials that disclosed no reasonable defence to justify the grant of setting aside orders. Since the Defendant was properly served, the judgment was regular. They further submitted on the merits of the case maintaining that the court’s judgment ought not to be disturbed as the suit was merited.
Analysis And Disposition
9.As a consequence of failure to enter defence, the procedure necessitates that judgment is entered in the favor of the Plaintiff at an interlocutory stage. In light of this, the Rules Committee which drafted the Civil Procedure Rules formulated a remedy where a defendant is dissatisfied with such a judgment. Order 10 Rule 11 of the Civil Procedure Rules becomes the armor of a party disgruntled by the interlocutory judgment. It provides that a Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.
10.This discretionary power to set aside ex parte judgment in default was discussed in the Court of Appeal case of Pithon Waweru Maina v Thuka Mugiria  eKLR, where Kneller JA observed as follows:
11.The objective behind setting aside judgment was articulated in the celebrated case of Shah v. Mbogo & Another  EA 116 where the Court held thus:
12.In being guided as to the steps to take when an application such as the one now before me is presented, I am further guided by the case of Patel v East Africa Cargo Handling Services Ltd  EA 75 that held:
13.Similarly, the Court of Appeal in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & another Civil Appeal No. 6 of 2015  eKLR held:
14.From the authorities cited above, the court must first of all ascertain whether there is a regular judgment on record and secondly, if regular, whether the defence raises triable issues that necessitate that the matter be heard and determined on its merits. Flowing from the above, I will now proceed to determine the Application as hereunder:
Whether there is a regular judgment on record
15.The gist of the Application is that the Defendant was never served with the summons to enter appearance. According to him, he only became aware of the suit when he sought to conduct a search on the suit property. He submitted that in those grounds, the judgment was irregular since he was never personally served.
16.The Plaintiffs on the other hand maintained that the Defendant was served properly. According to the Return of Service sworn by George Mumali, he effected service upon the Defendant’s wife after speaking to the Defendant over the phone. The said process server was called to cross-examination on this Affidavit.
17.I have scrutinized the court record. My observations are that after the suit was filed, the Plaintiff instructed George Mumali, a licenced process server, to effect service upon the Defendant on 05/05/2018. He was accompanied by the 1st Plaintiff who was his neighbour. Further evidence revealed that the Defendant was absent on the said date. They however found the Defendant’s wife at the homestead. The process server, who spoke to the Defendant over the phone, explained his purpose of visit. The Defendant instructed his wife to accept service of summons. The process server then prepared the return of service. Thereafter, the court on 12/06/2018 recorded that it was satisfied as to service thereby prompting the endorsement of the request for judgment. It was on the strength of this Affidavit that the suit proceeded for formal proof.
18.Looking at the Return of Service and the cross-examination of the process server, I am satisfied that the process server was clear, emphatic and truthful as to the manner of service, and that the service could therefore not be impugned. Although service was effected upon the Defendant’s wife, I am guided by the provisions enshrined in Order 5 Rule 8 of the Civil Procedure Rules which allows an agent to accept service on behalf of a party. I am satisfied that service of the agent, that is the Defendant’s wife, was sufficient. Consequently, I hold that the judgment entered was regular.
Whether the defence raises triable issues
19.As indicated from the decisions alluded to above, notwithstanding the fact of finding of that the judgment was regular, the main concern of the Court is to do justice to the parties. This court is required to interrogate whether it is in the interest of justice that the regular judgment be set aside. Consequently, I must determine why, if at all, the Defendant did not defend the matter, and whether I am satisfied that there is a defence on the merits. A defence on the merits is one that raises a triable issue that necessitates that the matter proceeds for trial on its merits.
20.On the first point, the Court having found the judgment was regular, it behooved the Defendant to have placed before this Court sufficient material to explain why he did not defend the suit. It was not enough to inform the Court that he was not served with the summons. He did not discharge that burden. Absence of the explanation would leave the Court with no option but to not disturb the judgment. However, the Court needs to examine one more issue: if the Defendant has a defence on merits.
21.In the Defendant’s draft Affidavit in reply to the Originating Summons it was deposed that the Defendant is the registered proprietor of the suit land. He denied ever having sold the suit land to the Plaintiffs’ father as stated in the Originating Summons. In fact, he raises forgery claims on the agreements relied on by the Plaintiffs. He stated that the Plaintiffs sold the said parcel of land illegally. He further deposed that the Plaintiffs had never been in occupation of the suit land. He denied that any loans were paid on behalf of the Defendant as contended by the Plaintiffs.
22.The above averments prompted the Plaintiffs to respond to the draft Affidavit. In their Replying Affidavit, the Plaintiffs maintain that the Defendants sold the suit land to the Plaintiffs pursuant to the execution of two (2) sale agreements. Since the Defendant had failed to transfer ownership, the Plaintiffs demanded for the same. That this demand letter was written after a time lapse of twelve (12) years.
23.It is evident that the draft pleading instigated the Plaintiffs’ action to respond to the averments by way of rebuttals in its Replying Affidavit. It’s clear beyond any form of peradventure that owing to the back and forth arguments in this Application, the defence raises triable issues that can only be determined in a full hearing where parties present their evidence. The grounds in the draft Affidavit call for the Court’s scrutiny that can only be available in a hearing and not at such an interlocutory stage. For these reasons, I find that the Defendant has sufficiently demonstrated that there are triable issues that call for adjudication. Consequently, I hold that the defence is not a sham.
24.Before I give my final orders, I must express dissatisfaction with the period taken in filing the present Application. While the Defendant pitted that he filed the Application instantaneously upon being aware of the suit, I am not convinced that he was aware of the suit at that juncture. However, I will give him the benefit of doubt. Be that as it may, the decisions in the Court of Appeal enunciated above herein tie me to not drive away a litigant from the seat of justice and let him be heard. The Application was filed more than one (1) year after judgment was entered. The execution process has since commenced. Since the said Application will deny the Plaintiffs the fruits of the judgement, and taking into account the steps taken in execution of the decree, I will award costs to the Plaintiffs.