Julius Mutuku Nguku v Anna Jael Musele & another [2020] eKLR

Key Facts

Issues

• The Appellant argued that the default judgment violated his constitutional right to a fair hearing by failing to allow him to present his defense. The court found the Appellant attended multiple hearings and ignored court directives to file a defense, rendering his late application an abuse of process.
• The court examined if the Appellant was validly served with the summons and Plaint, relying on the process-server's affidavit and the Appellant's subsequent court appearances. The Appellant denied service but did not challenge the process-server's testimony or provide evidence to the contrary.
• The court dismissed the Appeal, holding that the Appellant repeatedly declined to file a defense despite numerous opportunities, and waited until eviction to seek relief. This delay was deemed inconsistent with the Civil Procedure Act's overriding objectives and an abuse of judicial resources.

Holdings

• The court found that the Appellant was served with the summons through his son, Anthony Sila, and had multiple opportunities to file an Application to set aside the interlocutory Judgment but failed to do so, leading to the conclusion that the appeal was an abuse of the court process.
• The court concluded that the appeal lacked merit because the Appellant's conduct, including delaying the application until after being evicted from his property, violated the principles of efficient court processes under Article 159(2)(d) of the Constitution and Section 1B of the Civil Procedure Act.
• The court determined that the Appellant's failure to inform the court of his alleged lack of service from May 2009 onward, despite attending court sessions and being aware of the proceedings, deprived him of grounds to challenge the judgment at a later stage.

Remedies

Legal Principles

• The court stressed the importance of adhering to procedural rules as part of the rule of law. It held that procedural compliance is essential for fair judicial processes and that the Appellant's failure to follow court directives constituted an abuse of the process.
• The court examined the legal and evidential burdens of proof. The Respondents were required to prove service of summons, which the Appellant denied. The legal burden remained on the Respondents, but the evidential burden shifted. The court found that the Appellant did not discharge the evidential burden to show improper service, leading to the dismissal of his appeal.
• The Appellant claimed he was denied the right to be heard, a fundamental principle of natural justice. The court found that despite being served and given multiple opportunities, the Appellant failed to act, resulting in his inability to defend the case on its merits.

Precedent Name

• Raila Odinga & 5 Others v IEBC & 3 Others
• Law Society of Kenya v Martin Day & 3 Others
• Postal Corporation of Kenya vs. Inamdar & 2 Others
• Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others
• Omar Shallo vs. Jubilee Party of Kenya & Another
• Isaac Awuondo vs. Surgipharm Limited & Another

Cited Statute

• Civil Procedure Act
• Civil Procedure Rules, 2010
• Constitution of Kenya, 2010

Judge Name

Passage Text

• The law is now settled that if the defence filed by a Defendant raises even one bona fide triable issue, then the Defendant must be given leave to defend... even one triable issue is sufficient.
• it is my finding that the Appellant was served with summons. The Appellant was given numerous opportunities to file an Application setting aside the interlocutory Judgment. Having failed to do so, it is my finding that it is an abuse of the court process for the Appellant to seek to set aside the orders he was directed by the court to do four (4) years ago.
• For those reasons, I find the Appeal filed by the Appellant to be unmeritorious. The Appeal is therefore dismissed with costs.