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ELCAllowedCHUKA ELC NO. 53 of 2017 (formerly MERU HC ELC NO. 292 of 2016)· [2017] KEELC 1051 (KLR)

Anjerina Karimi Mutegi v Intex Construction Co. Ltd (Environment & Land Case 53 of 2016) [2017] KEELC 1051 (KLR)

Environment and Land Court
8 November 2017
PNP. M. Njoroge
3,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a default judgment because the company was never properly served—courier service only counts if the court approves it.

What this practically means

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Executive summary

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The defendant company, a road constructor engaged on the Chiakariga–Tunyai road, moved the Environment and Land Court at Chuka by notice of motion dated 17th August 2017 under sections 1, 1A, 1B and 3A of the Civil Procedure Act, Order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules and Article 159 of the Constitution. It sought stay of execution, setting aside of an ex parte judgment of 11th April 2017 (interlocutory judgment having been entered in default of appearance on 2nd March 2017 for Kshs.1,879,827.98) and leave to file a defence out of time. Its property had been proclaimed by auctioneers on 14th August 2017. The defendant argued that it was never properly served with summons, transfer notices, hearing notices or notice of entry of judgment, and that its draft defence raised triable issues. The plaintiff's advocate countered that service by Fargo Courier was valid under Order 5 rule 3(b)(ii), that the defendant had notice through its insurer and counsel, and that it had no defence, having earlier offered a partial settlement. The court framed the single common issue as whether the mode of service was proper. It held that while courier service on a company can amount to proper service, the courier must be approved by the court, which was not the case here, and that registered service was not effected either. The court allowed the application in terms of prayers 3 and 4, ordered costs in the cause, and directed the parties to appear for directions on 29th November 2017.

Key legal issues

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01

Proper service of summons on a company

Holding

Service on a company by courier under Order 5 rule 3(b)(ii) is proper only if the courier is approved by the court; here the courier was not court-approved, and service was not effected by registered post, so service was improper.

Reasoning

The court examined Order 5 rule 3 of the Civil Procedure Rules and section 1010 of the Companies Act (Cap 486). It accepted that courier service can constitute valid service on a corporation, but stressed the statutory condition that the courier must be approved by the court. Fargo Courier was not approved. The plaintiff also did not effect registered service. All the defendant's assertions of improper service were therefore accepted.

p. 7

Legal principles established

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  • Service on a corporation by a licensed courier service provider can amount to proper service, but only if the courier is approved by the court.

Court orders

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  1. 1.Application allowed in terms of prayers 3 and 4 (stay of execution and setting aside of the judgment)
  2. 2.Costs shall be in the cause
  3. 3.Parties directed to come to court for directions on 29th November, 2017 at 9.00am

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3A
  • Civil Procedure RulesOrder 5 rule 3, Order 10 rule 11, Order 51 rule 1
  • Constitution of KenyaArticle 159
  • Companies Act (Chapter 486, Laws of Kenya)Section 1010
Jurisdiction invoked
Sections 1, 1A, 1B and 3A of the Civil Procedure Act, Order 10 rule 11, Order 51 rule 1 of the Civil Procedure Rules, Article 159 of the Constitution of Kenya

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, "Anjerina Karimi Mutegi v Intex Construction Co. Ltd (Environment & Land Case 53 of 2016) [2017] KEELC 1051 (KLR)", Case Analysis (2017). CHUKA ELC NO. 53 of 2017 (formerly MERU HC ELC NO. 292 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1051/eng@2017-11-08

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