Mumias Sugar Company Limited v Synergy Industrial Credit Limited & another [2017] KECA 723 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts will not dismiss a suit over disputed summons service if the defendant knew about the case and participated in it.
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 learned Judge exercised his discretion judiciously or properly in dismissing the appellant's application seeking dismissal of the suit for want of service of summons to enter appearance
Key legal issues
#Whether the High Court judge exercised his discretion judiciously in declining to dismiss the suit for want of service of summons to enter appearance
The appeal turns on whether the discretion was exercised judiciously. The Court found no misdirection in law or misapprehension of facts; the judge took into account all relevant considerations, sought to do justice to the parties, and was not plainly wrong. The appeal was dismissed.
The Court applied the settled principles governing interference with discretionary decisions: an appellate court may only interfere where the trial judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision is plainly wrong. Here, the judge doubted whether summons were served but correctly held that the burden of proof lay on a balance of probability, and that the doubt could not be resolved on affidavit evidence without cross-examining the process server. Since the appellant was aware of the suit, had filed a notice of appointment of advocates, and had actively participated in interlocutory hearings, no prejudice was occasioned. Dismissing a suit is an extreme remedy reserved for the clearest of circumstances.
Distinction between authorities where summons were never issued and a case where summons were issued but service is disputed
The authorities relied on by the appellant were distinguishable because in those cases the summons were never issued or taken out, whereas in this case there was evidence that the summons were taken out, with the contest being whether they were served on the appellant.
The Court examined the High Court authorities cited by the appellant and found them inapplicable because they dealt with situations where summons had not been issued at all. In the present case, the summons were taken out on 11th April 2008, and the dispute concerned only whether they were served. That factual distinction meant those precedents could not support dismissal of the suit.
Whether the appellant's failure to be served with summons occasioned prejudice
No prejudice was occasioned to the appellant as it was aware of the suit and had actively participated in it through interlocutory application hearings, having filed a notice of appointment of advocates.
The Court noted that with or without formal service of summons, the appellant knew of the suit from April 2008, had instructed advocates who filed a notice of appointment, and had participated in interlocutory hearings. In those circumstances, the absence of formal service caused no prejudice, and awareness of the suit was sufficient to protect the appellant's right to a fair hearing. The purpose of service of summons is to give notice, and that purpose was fulfilled.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a High Court judge unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- The discretion in litigation belongs to the trial court, and an appellate court cannot simply substitute its own discretion for that of the trial court.
- In civil matters, proof is on a balance of probability; a mere doubt as to whether summons were served does not justify the drastic remedy of dismissing a suit, especially where the defendant was aware of and had participated in the suit.
- A dispute as to whether summons were served cannot be resolved on affidavit evidence alone; it requires cross-examination of the process server.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 196 of 2008
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution of Kenya, 2010 and the Appellate Jurisdiction Act over appeals from the High Court (not expressly quoted in the judgment)
Relief refused
#Appellant's prayer that the appeal be allowed and the suit against it dismissed for want of service of summons to enter appearance
The learned Judge exercised his discretion judiciously; the doubt as to service did not justify the drastic remedy of dismissing the suit, and no prejudice was occasioned since the appellant was aware of and had participated in the suit
Costs
Appeal dismissed with costs to the 1st respondent.
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.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established; first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of consideration of which he should have taken account, or fifthly, that his decision albeit a discretionary one is plainly wrong.
The general law on exercise of discretion is that the discretion is always that of the trial court and not of the appellate court. Hence an appellate court cannot substitute its own discretion.
Whether or not the summons were served could not have been resolved on the basis of affidavit evidence. It could only have been resolved by calling the process serverfor cross-examination.
Proof in civil matters is on balance of probability and not, as in criminal matters where it is beyond reasonable doubt.
After all, with or without the summons, the appellant was aware of the suit and had in fact actively participated in it through the interlocutory application hearings. Thus, no prejudice was occasioned to the appellant.
The upshot is that, we are satisfied that the learned Judge exercised his discretionjudiciously and we see no reason to interfere. The appeal thus fails and is accordingly dismissed with costs to the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mumias Sugar Company Limited v Synergy Industrial Credit Limited & another [2017] KECA 723 (KLR)", Case Analysis (2017). Civil Appeal No. 268 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/723/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.