Sainaghi T/A Enterprise Panel Beaters v Kasuku
The bottom line
#A Kenyan court cannot rely on an unsworn return of service to deny someone a hearing; disputed service must be tested with evidence from the process server.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge erred in treating an unsworn return of service as a sworn affidavit
- 2.Whether the court was obliged to take evidence from the process server where service and the signature of the person served were disputed on sworn affidavit
- 3.Whether the ex-parte judgment should be set aside and leave to defend granted
Key legal issues
#Treatment of unsworn return of service
The trial judge misdirected himself by relying on an unsworn return of service as if it were a sworn affidavit.
The return of service was filed by a law clerk and was not sworn. The judge heavily relied on it in dismissing the application to set aside the ex-parte judgment. Treating an unsworn document as an affidavit was a misdirection, particularly where the signature of the person served was disputed on affidavit.
Duty to inquire into disputed service
Where service is challenged by sworn affidavit, the court must record evidence of the process server and the applicant to resolve the conflict before dismissing the application.
Following Karatina Garments Ltd v Nyanarua, the court held that where a respondent denies service, the court should inquire into the matter and, in the face of conflicting affidavits, examine the deponents on oath to ascertain the truth. The judge's failure to call the process server was an error warranting reversal.
Leave to defend
The appellant, having filed a draft defence with counter-claim, was entitled to unconditional leave to defend.
The appellant's original application included a defence and counter-claim, seeking leave to defend. Leave could be conditional or unconditional; on the facts the court held unconditional leave appropriate, with the draft defence and counter-claim taken as filed on payment of court fees.
Legal principles established
#- Where service of summons and the signature of the person served are disputed on sworn affidavit, the court must inquire into service and take evidence, including examining the process server, before dismissing an application to set aside an ex-parte judgment.
- An unsworn return of service cannot be treated as a sworn affidavit.
Court orders
#- 1.Appeal allowed with costs
- 2.Ex parte judgment of the High Court set aside
- 3.Defence and counter-claim already on record to be taken as validly filed on payment of the necessary fees
- 4.Appellant to have the cost of his application in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- First appellate jurisdiction over High Court rulings (Civil Procedure; appeal from ruling and order of the High Court)
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.
We are of the view that due to the conflict between return of service, and the affidavit by the appellant, evidence of the process server should have been recorded and that of the appellant to assist the court in resolving the issue as to who was telling the truth.
This return of service was not sworn. The learned judge misdirected himself in treating it as a sworn affidavit.
1. That this appeal is allowed with costs. 2. The ex parte judgment of the High Court is set aside.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sainaghi T/A Enterprise Panel Beaters v Kasuku", Case Analysis (1988). Civil Appeal No 88 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/140/eng@1988-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.