The Tenant Who Served the Landlord's Cousin
A landlord, Mwangi, resides in Nakuru but owns a commercial shop in Kisumu. His tenant, Otieno, defaults on three months' rent (KSh 45,000 monthly). Otieno's advocate files a suit in the Kisumu Chief Magistrate's Court and, on the same day, hands a copy of the plaint and summons to Mwangi's 22-year-old cousin, who happens to be minding the shop that afternoon and who tells the process server she 'sometimes helps out with the books.' The process server completes an affidavit of service stating the cousin is 'an adult member of the defendant's family residing with him.' Mwangi does not enter appearance. Fourteen days later the court enters interlocutory judgment and proceeds to formal proof. Mwangi learns of the decree when auctioneers attach the shop's stock and instructs you urgently.
1. Was service of summons valid under the Civil Procedure Rules? Identify the specific defect and explain the consequence for the default judgment.
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Invalid. Under the Civil Procedure Rules (Kenya), where the defendant is an individual, summons must be served on the defendant personally, or on an adult member of his family residing with him, or on a servant/agent at his residence, or by substituted service with leave of court.
Key points:
- The cousin was minding the shop - she is a relative, but there is no evidence she resides with Mwangi (he lives in Nakuru). The affidavit of service is therefore false on its face.
- Service at a place of business on a relative who does not reside with the defendant does not meet the rule.
- Even if the cousin were an agent, the rule contemplates service at the defendant's residence or a servant/agent, not a casual helper.
Consequence: Defective service means the court never acquired jurisdiction over Mwangi. A default judgment founded on invalid service is a nullity and is liable to be set aside ex debito justitiae (as of right), not as a discretionary favour - the court has no discretion to refuse where the defendant was never served.
2. Draft the procedural route you would take to set aside the decree, and state what you must show.
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Route: Apply to the same court by Notice of Motion under the order dealing with setting aside default judgments (and the inherent jurisdiction of the court), supported by an affidavit.
Must establish:
- Non-service or defective service - attach Mwangi's affidavit denying receipt and the cousin's account; this alone entitles him to setting aside as of right.
- In the alternative, if the court finds service arguable, show a defence on the merits with a draft defence annexed, and explain any delay (here, prompt action after attachment).
- Bona fide defence - e.g., that rent was paid for one of the three months, or that the premises were closed by county authorities for a period.
Practical points:
- Seek stay of execution pending the application, otherwise the stock may be sold.
- Costs: where setting aside is granted on the ground of non-service, ask that costs not be awarded against the defendant.
- Note the limitation on setting aside where the judgment was regular - the court has discretion but the defendant must show a triable defence.