Toshike Construction Company Limited v Harambee Co-operative Savings & another [2019] KECA 598 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a defective affidavit isn't fatal, service was proven, yet the SACCO could still defend the case—on payment of costs.
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 erred in fact and in law in failing to strike out the undated Supporting Affidavit allegedly sworn by Gladys Gichohi
- 2.Whether the learned Judge erred in finding that the respondent was not served and/or was not properly served with the summons to enter appearance
- 3.Whether the learned Judge erred or misdirected himself in exercising his judicial discretion in favour of the respondent
- 4.Whether the learned Judge erred in allowing the Notice of Motion application dated 5th October 2016, including the contention that the application related to a non-existent ex parte order
Key legal issues
#Whether an affidavit is vitiated by an incomplete jurat lacking the name of the signatory
No. The absence of the name of the signatory from the jurat is not fatal; an affidavit cannot be vitiated by an irregularity in form, and the defect could be cured by re-swearing.
The Oaths and Statutory Declarations Act, section 5, requires only the place and date in the jurat; the name of the signatory is not a mandatory particular. The Saggu decision relied on by the appellant actually holds that irregularities in form do not vitiate an affidavit in light of the constitutional dictate that substantive justice be administered without undue regard to technicalities. The trial judge's factual findings on execution and attestation of the affidavit disclosed no error.
Whether the summons to enter appearance was properly served on the respondent so as to entitle it to have the default judgment set aside ex debito justitiae
Yes, the respondent was duly served. The trial judge's finding of non-service was based on no evidence or a misapprehension of the evidence and could not stand; the respondent was not entitled to the order ex debito justitiae.
The process server testified and was cross-examined without his credibility being dented; he named the General Manager ('Wandera') who was never disavowed, and the stamped acknowledgment of service was on record without contest. The respondent's own affidavit and conduct (negotiations, letters, admission it had not refused to comply with the judgment) contradicted its claim of late awareness. The trial court's finding that the respondent became aware of the proceedings on 8th July 2017 was unsupported by the evidence, warranting interference.
Whether the trial judge properly exercised his discretion under Order 10 Rule 11 in setting aside the ex parte judgment
The judge erred in principle by failing to consider the draft defence and counterclaim, which raised bona fide triable issues; the Court interfered, but exercised its own discretion to set aside the judgment and permit the respondent to defend on terms as to costs.
While the discretion under Order 10 Rule 11 is wide, the judge, preoccupied with service, said nothing about relevant factors, most glaringly the draft defence and counterclaim. Those pleadings raised issues going to the root of the dispute and were not frivolous. Because a trial court always reserves the right to set aside an ex parte judgment, the Court substituted its own discretionary order setting aside the judgment with leave to defend conditioned on thrown-away costs, while censuring the respondent's conduct in delaying filing a defence pending failed settlement negotiations.
Whether the setting-aside application was incompetent because it referenced a non-existent ex parte judgment of 28th March 2011
No. The point was an afterthought never raised before the trial court; there was only one ex parte judgment (of 19th December 2012) and no ambiguity arose.
The issue was one of mixed fact and law and should have been raised before the trial court. None of the parties was in doubt about which judgment was being set aside. The Waki Clearing & Forwarding authority was decided before the new Constitution and was distinguishable, since here the nature of the order sought was spelled out.
Legal principles established
#- A finding of fact by the trial court will be interfered with on appeal where it is based on no evidence, a misapprehension of the evidence, or where the judge acted on wrong principles
- The Court of Appeal will not interfere with the exercise of a judge's discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest from the case as a whole that he was clearly wrong
- Even where service of summons is valid, an ex parte judgment will be set aside if the draft defence raises triable issues; the court hearing an application to set aside a default judgment must consider whether a draft defence raises a reasonable defence
- A defect or irregularity in the jurat or form of an affidavit does not vitiate the affidavit where substantive justice would otherwise be served, consistent with Article 159(2)(d) of the Constitution
- A triable issue need not be one that would succeed; it is any matter warranting further interrogation by the court at a full trial
Court orders
#- 1.The order setting aside the default judgment of Mabeya, J. made on 19th December 2012, or any other ex parte judgment, as a matter of right is set aside
- 2.The ex parte judgment dated 19th December 2012 and the consequential decree issued on 28th March 2013 are set aside in exercise of the Court's discretion
- 3.Leave granted to the respondent to defend the suit on condition that it pays all costs thrown away, to be taxed if not agreed
- 4.In default of payment of thrown away costs, execution for the costs shall issue without further application
- 5.The statement of defence and counterclaim, the reply to the defence and the defence to the counterclaim are deemed properly on record
- 6.Status quo obtaining as at 12th October 2017 with respect to the disputed property shall remain in force until hearing and determination of the suit
- 7.The respondent shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 121 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal against the ruling and order of the High Court (Civ App juris under the Constitution and Court of Appeal Act; appeal against exercise of judicial discretion)
Relief refused
#Setting aside of the ex parte judgment ex debito justitiae (as of right) on the basis of non-service of summons
The Court found on the uncontroverted evidence that the respondent was duly served with summons and was therefore not entitled to the order as of right; the judgment was set aside only in the exercise of discretion
Costs
The respondent shall bear the costs of the appeal.
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.
In the result, we allow the appeal to the extent that the order setting aside the default judgment of Mabeya, J. made on 19 th December 2012 or any other ex parte judgment, as a matter of right, shall be and is hereby set aside.
The ex parte Judgment dated 19 th December, 2012 as well as the consequential decree issued pursuant thereto on 28 th March, 2013, be and are hereby set aside in exercise of the Court's discretion.
Leave be and is hereby granted to the respondent to defend the suit on condition that the respondent pays all costs thrown away, which shall be taxed, if not agreed.
The respondent shall bear the costs of the appeal.
In our finding, the judgment was regular and the respondent was not entitled to an order setting it aside ex debito justitiae. We uphold that ground of appeal.
We think the learned Judge made an error in principle when he failed to consider the 'draft defence and counterclaim' and we must interfere with the orders made in the matter.
Ordinarily, this Court is not at liberty to interfere lightly with findings of fact made by the trial court. But it will do so where the findings are 'based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principles in reaching the finding'.
Issues in the judgment
#Internal inconsistency in the dates the respondent allegedly became aware of the proceedings: the ruling quotes the respondent's position as awareness on 8th July 2017, the trial court is said to have found awareness on 8th July 2017, yet earlier the judgment records that 'the respondent, in its application filed on 10 th October, 2016 asserted that it became aware of the suit on 8th December, 2013', and elsewhere counsel for the appellant is recorded as saying the respondent was aware 'in August 2011 and not in July 2017'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Waita & another v Waita & another (Civil Appeal E030 & E032 of 2023 (Consolidated)) [2025] KECA 689 (KLR)[2025] KECA 689 (KLR)11 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Toshike Construction Company Limited v Harambee Co-operative Savings & another [2019] KECA 598 (KLR)", Case Analysis (2019). Civil Appeal No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/598/eng@2019-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.