A judgment for possession can appear to settle the practical future of a property. But where it was obtained by default, the reliability of service and the issues in the proposed defence may still determine whether that judgment can stand.
In Makomere v Isigi [2024] KECA 1807 (KLR), Civil Appeal 13 of 2019, the Court of Appeal delivered judgment on 20 December 2024. It set aside the default judgment and consequential orders and directed a priority rehearing before another judge.
The formal header identifies the Kisumu court and judges P. O. Kiage, F. Tuiyott and J. M. Ngugi.
It did not decide who should ultimately win the underlying contractual and possession dispute.
The property claim had proceeded without a contested trial
The suit concerned alleged breach of contract, termination of a tenancy and vacant possession. It proceeded to default judgment.
Makomere challenged the result, raising issues about service and seeking an opportunity to defend the claim.
The service dispute included discrepancies concerning the place where service was said to have occurred and the identification of the person served. These were material to whether the defendant had properly been brought into the proceedings.
The appeal challenged the ELC's 20 November 2018 refusal to set aside the default judgment, not a contested merits determination (paragraphs 1 and 11–12).
The court found a basis for treating the judgment as irregular
Paragraphs 23–28 address the service evidence. The Court of Appeal found sufficient grounds to treat the default judgment as irregular.
The particular discrepancies mattered because an account of service must connect the documents, the intended recipient and the act of delivery.
The court did not find that every service statement was deliberately false. Its conclusion concerned this disputed service, not every minor discrepancy in an affidavit.
The proposed defence raised questions that needed a hearing
The court also considered the draft defence independently of the service issue. It identified triable questions about performance of the parties' contract and whether rescission was justified.
A triable issue is a question warranting adjudication, not a finding that the party raising it has already proved the defence.
The Court of Appeal did not use the setting-aside application to resolve all the competing contractual accounts. It found that they should be heard in the proper proceedings.
Paragraph 30 also records a prompt application and no shown overreaching or fraudulent conduct by the appellant. The defence would have justified setting aside even a regular default judgment.
A rehearing order is not a new ownership declaration
The appeal was allowed with costs. The default judgment and all consequential orders were set aside, and the suit was remitted to the ELC for priority rehearing before a judge other than N. A. Matheka.
The concurring judgments adopted those orders.
This was not an award of ownership to Makomere, a final finding that Isigi had breached the contract or a permanent rejection of the possession claim.
Instead, the order removed the default outcome and restored the need for a substantive determination.
The earlier named-reader search did not identify the result of the directed rehearing. This article therefore does not fill that gap with an assumed later victory for either side.
Why a default order needs its procedural history
It is necessary to know whether the order followed a contested trial, whether service is challenged, what relief the appellate court granted and whether a rehearing has since occurred.
That does not mean a party may independently disregard an order it considers defective. Questions about its effect and available remedies require legal advice and the actual court record.
Questions before treating possession litigation as complete
- How was service effected and recorded?
- What alleged discrepancies were considered by the court?
- Did the proposed defence raise questions left for trial?
- Has the rehearing been determined, or is only the setting-aside order available?
A Kenyan advocate should examine those matters before an owner, occupier or buyer treats the earlier default judgment as the final word.
The primary source also varies the appellant's first-name spelling. This account uses the reported short case title without reconstructing a corrected identity.
Screening can organise procedural uncertainty
ArdhiScore screening can help organise available dated evidence, identifiers, citations and questions for official or professional checks. It cannot determine service, provide automatic protection from proceedings or deadlines, certify title or boundaries, or replace an official search and Kenyan legal advice.
Explore ArdhiScore screening and its limits.
This is historical analysis, not legal advice or current possession status. The rehearing outcome and current docket remain unknown.
Primary decision
Read the judgment. See paragraphs 4–10 for the suit and service dispute, 23–30 for the court's assessment, and 31–34 for the setting-aside and rehearing orders.
Source note — 2026-09-11: Earlier named-reader acquisition/research on 2026-09-11 preceded this independent local AI reading on 2026-09-11. All indexed captures were read: formal header, paragraphs 1–34 and both concurrences. Raw text supplied the embedded second spent prayer in paragraph 1. The indexed captures contain no dated signed conclusions, so source completeness remains held. No fresh acquisition or history search occurred. Access/reuse, privacy, human-legal, publication and operational acceptance remain separate unresolved gates; this is not human legal or publication clearance.