Macho Credit Limited v Giro Commercial Bank Limited
The bottom line
#Kenya's Court of Appeal confirmed that if you actually received court documents, you cannot undo ex parte orders by complaining about how they were delivered.
What this practically means
#Executive summary
#Key legal issues
#Effect of proved receipt of process on a complaint about mode of service
A complaint on the mode of service fails where receipt of the process served is admitted or not denied; the mode becomes a secondary and non-serious excuse for setting aside ex parte orders
The appellant's advocates admitted, in their affidavit in support of the review application, receiving a letter of 8th January 2004 that forwarded both the notice of motion and hearing notice, as shown by the endorsement 'ENCLS'. Having received actual notice, the appellant could not credibly complain that service by certificate of posting rather than personal or registered service was unlawful. The Court of Appeal therefore found no ground to fault the trial Judge and held the mode of service objection to be illogical and immaterial.
Appellate interference with judicial discretion
The Court will not interfere with the exercise of a lower court's discretion unless satisfied that the decision was clearly wrong, that the judge misdirected himself or acted on wrong principles, resulting in misjustice
The Court applied the classic principles in Mbogo v Shah and the separate opinions of de Lestang VP and Law JA therein. It was satisfied that the trial Judge took into account all matters he was entitled to consider, that service had been effected, and that the discretion was exercised judiciously and not capriciously. Consequently the appeal against the dismissal of the motion to set aside, stay or review the orders of 24th March 2004 had no merit.
Alleged requirement to annex a decree or order to a review motion
The trial Judge's statement that no decree or order was annexed did not occasion injustice and could not sustain the appeal, given the finding on service
The appellant faulted the Judge for requiring a decree or order to be annexed to the review motion. The appellate court held the criticism was not serious because the Judge used 'decree' and 'order' in the same sentence, and no injustice was shown. In the totality of the motion, and given the uncontradicted receipt of the hearing notice, the Judge would have been wrong to allow setting aside, stay or review of his earlier orders.
Legal principles established
#- Once service of process is proved and not denied, a complaint as to the mode of service is immaterial and cannot justify setting aside ex parte orders made after notice of the hearing date
- An appellate court will not interfere with the exercise of judicial discretion by a lower court unless it is satisfied that the judge misdirected himself, or that it is manifest from the case as a whole that the judge was clearly wrong and misjustice has resulted
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- Misc. Application No. 168 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court in the exercise of its supervisory/appellate jurisdiction over subordinate courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macho Credit Limited v Giro Commercial Bank Limited", Case Analysis (2014). Civil Appeal No. 92 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/128/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.