National Bank of Kenya Limited & another v Geoffrey Wahome Muotia [2017] KECA 375 (KLR)
The bottom line
#The Court of Appeal cancelled contempt findings against a bank and an auctioneer because the court order was never properly served on them.
What this practically means
#Executive summary
#Key legal issues
#Validity of service of a court order on a corporation
Service of the order on the 1st appellant on 23rd January 2015 was invalid; Order 5 Rule 3 prescribes an elaborate procedure for service on a corporation, and service before 5 p.m. on a weekday is required under Order 50 Rule 9.
The process server arrived at 6.00 p.m. at locked offices and left a sealed envelope with a gateman. The court held this fell foul of the prescribed procedure for service on corporations (service on the Secretary, a Director or principal officer, or leaving at the registered office, by registered post or approved courier). Further, Order 50 Rule 9 requires service before 5 p.m. on weekdays, so Friday 6 p.m. service is deemed effected the following Monday. Consequently the 1st appellant had no knowledge of the order when the advertisement was placed.
Contempt of court and the burden on the applicant
A party seeking a contempt finding must demonstrate proper service of the order, knowledge, disobedience and its deliberateness; the threshold was not met here.
Counsel for the appellants submitted, and the court accepted, that the respondent bore a duty to show the order had been served, known, and deliberately disobeyed. The uncontroverted evidence showed the advertisement was placed on 23rd January 2015 before any effective service, the 2nd appellant's principal officer was out of town and unable to cancel the publication, and Nation Media's offices were closed that Saturday afternoon. The Judge's contrary findings rested on improperly taken judicial notice and on rejecting uncontroverted affidavit evidence.
Judicial notice of contested facts
It was wrong for the learned Judge to take judicial notice that Nation Media Group's offices open on Sundays until 1.00 p.m.; that is not a fact of notoriety and it was challenged.
While judicial officers may take notice of facts of certain notoriety, the existence of Sunday opening hours for a media house is not such a fact. The respondent, who relied on it to defeat the 2nd appellant's impossibility explanation, bore the burden of placing evidence of it before the court. There was no such evidence before the Judge, so her reliance on judicial notice vitiated the finding against the 2nd appellant.
Joinder of the 2nd appellant
Since the 2nd appellant was not in breach of any court order, its joinder solely for the purpose of a contempt application was unnecessary.
The only reason the respondent sought joinder of the auctioneer as second defendant was to sustain the contempt application against it. Having found no contempt, the court held the joinder served no purpose. The entire Motion, including the joinder prayer, was dismissed in substitution for the High Court ruling.
Legal principles established
#- Leaving a sealed envelope with an unidentified gateman at the locked offices of a corporation at 6.00 p.m. is not valid service of process on the corporation, which must follow the procedure in Order 5 Rule 3 of the Civil Procedure Rules.
- Service of court process is to be effected on a weekday other than Saturday and before the hour of five in the afternoon; process effected on a Friday after five o'clock is deemed served the following Monday.
- Judicial notice may only be taken of facts of such notoriety as to be beyond dispute; a challenged fact such as whether a media house opens on Sundays is not such a fact, and the party asserting it must place evidence before the court.
Court orders
#- 1.The appeal is allowed
- 2.The ruling of the High Court given on 11th November 2015 is set aside
- 3.In substitution, the Motion dated 2nd February 2015 is dismissed
- 4.The suit be handled by another Judge other than Lady Justice Farah Amin
- 5.The appellants will have costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 23 of 2015
- Jurisdiction invoked
- Appeal from an interlocutory ruling of the High Court under the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney General v Katiba Institute & 2 others (Civil Application E184 of 2021) [2021] KECA 38 (KLR)[2021] KECA 38 (KLR)23 Sept 2021
- Grace Chemutai Koech v Francis Kiplangat Chebiror & 2 others [2019] KEELC 2981 (KLR)[2019] KEELC 2981 (KLR)12 Jun 2019followed
Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya Limited & another v Geoffrey Wahome Muotia [2017] KECA 375 (KLR)", Case Analysis (2017). Civil Appeal No. 25 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/375/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.