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Court of AppealDismissedCivil Appeal 249 of 1999· [2000] KECA 55 (KLR)

Mint Holdings Ltd & 1 other v Trust Bank Ltd

Court of Appeal of Kenya
19 September 2000
612 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that court documents must be served on a party's lawyer once appointed, and irregular default judgments will be set aside.

What this practically means

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Executive summary

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The appellants, plaintiffs in H.C.C.C. No. 182 of 1999 before the High Court at Nairobi (Mbaluto J), sued Trust Bank Ltd and others seeking reliefs that included no liquidated demand, and applied for an interim injunction to restrain the sale of their property, LR No. 10261/2, Nairobi. The respondent's advocates, M/s Ndungu Njoroge & Kwach, lodged a notice of appointment of advocates on 26th February 1999, which the appellants' advocates knew of, yet on 9th March 1999 they served the summons on the respondent itself through its statutory manager. Interlocutory judgment was entered ex-parte, and the respondent successfully applied to set it aside in a ruling delivered on 3rd June 1999. On appeal, the Court of Appeal (Omolo, Shah and O'Kubasu JJA) held that once an advocate has been appointed and has lodged a notice of appointment, all process must be served on that advocate; service on the party itself was wrong. Further, since the reliefs sought were unliquidated and required formal proof, entry of interlocutory judgment under Order IXA of the Civil Procedure Rules was irregular. Counsel for the appellants properly conceded both points. The Court found no merit in the appeal, could not fault the learned Judge's exercise of his undoubted discretion to set aside a judgment irregularly obtained, and dismissed the appeal with costs on 19th September 2000.

Key legal issues

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01

Proper mode of service where a party has an advocate on record

Holding

Service of summons on the party itself was improper where the party's advocates had lodged a notice of appointment; service ought to have been made on the advocates.

Reasoning

The respondent's advocates lodged a notice of appointment clearly indicating they were acting in the suit itself, and the appellants' advocates were aware of it. Order III rules 8 and 3 of the Civil Procedure Rules apart, common sense dictates that once an advocate is appointed and has filed a notice of appointment, all process must be served on that advocate. Counsel for the appellants properly conceded the service was wrong.

p. 2
02

Regularity of interlocutory judgment where reliefs are unliquidated

Holding

Entry of interlocutory judgment was irregular because the reliefs sought were not a liquidated demand and judgment could only be entered after formal proof.

Reasoning

The prayers in the plaint did not entitle the appellants to interlocutory judgment since there was no liquidated claim; judgment could only follow formal proof. Order IXA of the Civil Procedure Rules does not provide for interlocutory judgment where the nature of the reliefs requires formal proof. Counsel for the appellants conceded the entry of judgment was irregular.

p. 2
03

Discretion to set aside an irregularly obtained ex-parte judgment

Holding

The High Court Judge properly exercised his discretion in setting aside the ex-parte interlocutory judgment, and the Court of Appeal could not fault him.

Reasoning

The respondent correctly sought to set aside the judgment irregularly obtained. The learned Judge possessed an undoubted discretion to set aside judgments irregularly obtained, and on the facts - improper service and irregular entry of judgment - there was no basis for interfering with that exercise of discretion. The appeal therefore lacked merit and was dismissed with costs.

p. 2

Legal principles established

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  • Once an advocate has been appointed to act for a party and has lodged a notice of appointment of advocates, service of any process of the court must be made on that advocate, not on the party.
  • Interlocutory judgment cannot be entered under Order IXA of the Civil Procedure Rules where the reliefs sought are not a liquidated demand and require formal proof.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 182 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (no specific constitutional/statutory provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mint Holdings Ltd & 1 other v Trust Bank Ltd", Case Analysis (2000). Civil Appeal 249 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/55/eng@2000-09-19

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