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Court of AppealPartially AllowedCivil Appeal No. 220 of 1995· [1996] KECA 225 (KLR)

Kingsway Tyres & Automart Ltd v Rafiki Enterprises Ltd

Court of Appeal
14 November 1996
JGJ.E. GicheruALA.A. LakhaSBS.E.O. Bosire
1,396 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a default judgment, confirming that proper postal service shifts the burden to the defendant to prove otherwise.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal against a High Court decision (Hayanga, J.) setting aside an ex parte judgment entered against Rafiki Enterprises Ltd in a liquidated demand of Kshs.1,755,816.65 for goods sold and delivered. Summons had been served by prepaid registered post under O.V rule 2 of the Civil Procedure Rules, supported by an affidavit of service and certificate of posting. The respondent denied service but took no step on record for two months. The High Court, while accepting that registered-post service was proper, held that the plaintiff should additionally have followed up by letter or telephone, and that the plaintiff had not sufficiently answered the denial of service; on those grounds it set aside the ex parte judgment. The Court of Appeal held both findings were misdirections: the affidavit of service complied with O.V rule 15(1), the onus of faulting service lay on the respondent, and no statutory basis existed for requiring follow-up confirmation. The ex parte judgment was therefore a regular judgment. The respondent's asserted defence - that the claim rested on L.P.O.s stolen by its employees who faced criminal charges - was not annexed as a draft defence and was not such as would have justified setting aside, particularly given the parties' business dealings. The appeal was allowed, the order vacating the ex parte judgment was set aside, the ex parte judgment was restored, and the appellant received the costs of the appeal and of the suit below.

Key legal issues

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01

Sufficiency of service by prepaid registered post on a corporation

Holding

Service by prepaid registered post to the registered postal address under O.V rule 2 was proper service; an affidavit of service with all essential details rebutted the denial of service, and the ex parte judgment was regular.

Reasoning

The affidavit of service and certificate of posting complied with O.V rule 15(1), containing the name and address of the recipient, date of posting and sender's address. No allegation was made in the court below that the affidavit was deficient. The onus of faulting service lay on the respondent, which failed to discharge it.

p. 2
02

Whether the plaintiff was obliged to follow up service beyond the statutory mode

Holding

The judge below misdirected himself by requiring the appellant to make a follow-up by letter or telephone; the statutory mode of service under O.V rule 2 suffices.

Reasoning

The High Court imposed an additional requirement not found in the Civil Procedure Rules. That misdirection, together with the finding that the denial of service was not rebutted, weighed heavily on the discretion and vitiated the decision to set aside the ex parte judgment.

p. 2
03

Reasonable defence on the merits as a ground for setting aside a regular ex parte judgment

Holding

The defence raised (stolen L.P.O.s and criminal charges against employees) was not such as would have influenced the court below to set aside the judgment, particularly given the parties' manner of conducting business.

Reasoning

The respondent did not annex a draft defence to its application, which was desirable. The affidavit asserting stolen L.P.O.s and related criminal charges did not constitute a reasonable defence capable of justifying setting aside the regular judgment, especially considering how the parties transacted business.

p. 3

Legal principles established

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  • Where an affidavit of service complying with O.V rule 15(1) is on the court file, the plaintiff has rebutted a bare denial of service; the onus lies on the defendant to fault the service.
  • A plaintiff who serves by prepaid registered post in accordance with O.V rule 2 need do no more; there is no obligation to follow up by letter or telephone to confirm receipt.
  • An appellate court will not lightly interfere with discretionary jurisdiction unless it is based on a wrong premise, and will not substitute its own discretion for that of the trial court.
  • Even a regular ex parte judgment may be set aside if the defendant shows a reasonable defence on the merits, ordinarily supported by a draft defence annexed to the application.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court vacating the ex parte judgment set aside
  3. 3.Ex parte judgment in default of appearance restored
  4. 4.Appellant awarded costs of the appeal and of the suit in the court below

Authorities

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Legislation

  • Civil Procedure RulesO.IXA rules 10 and 11
  • Civil Procedure RulesO.IXB rule 8
  • Civil Procedure RulesO.V rule 2
  • Civil Procedure RulesO.V rule 15(1)

Cases cited (2)

  • Shah v Mbogo
    [1967] EA 116

    Discretionary jurisdiction under O.IXA is exercised to obviate injustice or hardship from accident, inadvertence or excusable mistake.

  • Haji Ahmed Sheikh t/a Hasa Hauliers v Highway Carriers Ltd
    [1982-88] 1 KAR 1184

    An appellate court will not lightly interfere with discretion unless based on a wrong premise, nor substitute its discretion for that of the trial court.

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 800 of 1995
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court; appeal against exercise of judicial discretion under O.IXA rules 10 and 11, Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kingsway Tyres & Automart Ltd v Rafiki Enterprises Ltd", Case Analysis (1996). Civil Appeal No. 220 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/225/eng@1996-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.