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ELCAllowed· [2014] KEELC 573 (KLR)

George Gathuki Ng’ang’a v Gaski Investment Limited & 2 others [2014] KEELC 573 (KLR)

High Court of Kenya
27 June 2014
MGMary M. Gitumbi
593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court set aside a default judgment because the plaintiff never properly served court summons on the defendant's lawyers.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 28th October 2013 by the 1st Defendant/Applicant seeking to set aside an Interlocutory Judgment entered against it on 16th September 2013. The Application, supported by an affidavit of its advocate Gitonga Kithinji Muriuki, was unopposed by the Plaintiff. The applicant's advocate deponed that he received instructions on 9th August 2013, obtained copies of the pleadings on 12th August 2013, and filed and served a Notice of Appointment of Advocates the same day, yet the firm was served with a Notice of Entry of Judgment on 3rd October 2013 despite the Summons to Enter Appearance, issued on 16th August 2013, never having been served on it. The court identified the guiding provision as Order 10 Rule 11, permitting the court to set aside a default judgment on such terms as are just, and framed the central question as whether there was proper service of the Summons to Enter Appearance on the 1st Defendant. Relying on Order 5 Rule 8(2), which permits service of summons on an advocate with instructions to accept service, the court found on perusal of the record that the applicant's advocates, though on record since 12th August 2013, were never served with the summons issued on 16th August 2013. It accordingly held that interlocutory judgment should not have been entered, set aside the judgment of 16th September 2013, and allowed the application with costs to the 1st Defendant/Applicant.

Key legal issues

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01

Proper service of Summons to Enter Appearance on advocates on record

Holding

The 1st Defendant's Advocates filed a Notice of Appointment on 12th August 2013 but were never served with the Summons issued on 16th August 2013; interlocutory judgment was therefore irregularly entered and was set aside.

Reasoning

Applying Order 5 Rule 8(2), summons may be served on an advocate with instructions to accept service and enter appearance, and judgment in default may only follow such service. On perusal of the record, the Advocates were on record four days before the summons issued yet were never served. The court, in the exercise of discretion under Order 10 Rule 11, found setting aside on just terms to be appropriate since judgment in default could not properly rest on unserved summons.

p. 2

Legal principles established

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  • Where an advocate has filed a Notice of Appointment and has instructions to accept service, summons must be served on that advocate before interlocutory judgment can be entered.

Court orders

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  1. 1.Interlocutory Judgment entered on 16th September 2013 set aside
  2. 2.Application allowed with costs to the 1st Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 5 Rule 8(2)
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules

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, "George Gathuki Ng’ang’a v Gaski Investment Limited & 2 others [2014] KEELC 573 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/573/eng@2014-06-27

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