Mvita Bottlers Limited v Suncanvas Limited & 2 others [2019] KEELC 3287 (KLR)
The bottom line
#A Mombasa court dismissed an attempt to overturn ex parte orders, ruling the defendants were properly served and had no valid defence.
What this practically means
#Executive summary
#Key legal issues
#Scope of review under Section 80 of the Civil Procedure Act and Order 45
The grounds for review are restricted to discovery of new matter, error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay; the orders of 14th/15th January 2019 do not qualify
The court restated the statutory grounds for review and the Court of Appeal's test in National Bank of Kenya v Ndungu Njau that the error must be self-evident. The ruling of 14th January 2019 was made after perusing the affidavit of service, and absent contrary evidence the court made a conscious decision. Such orders cannot be reviewed in the manner the Applicants urged.
Whether service of the pleadings and motion was effected on the Applicants
Service was duly effected; the Applicants failed to displace the affidavit of service by cross-examining the process server, and the 3rd Defendant's claim of being in Nairobi was an afterthought unsupported by boarding passes
The court held that in a word-against-word dispute over service, cross-examination of the process server is the proper mechanism, which the Applicants declined to invoke. The 3rd Defendant raised the out-of-town claim only in a supplementary affidavit and annexed only a ticket and invoice, which do not prove travel. In the absence of evidence to the contrary, the court found service duly effected and the orders could not be set aside.
Whether the proposed defence raised triable issues warranting setting aside the ex parte orders
The statement of defence contained mere and bare denials, and the 3rd Defendant's averment that the Plaintiff is his special vehicle amounted to an admission
The Applicants did not annex a draft response to the motion of 2nd November 2018. The statement of defence dated 20th February 2019 contained bare denials. Further, paragraph 8 admitted the Plaintiff is a special vehicle in which the 3rd Defendant has direct and primary interest, so the Plaintiff's actions were ultimately for the 3rd Defendant's benefit, undermining any discernible triable issue.
Legal principles established
#- An error for review must be self-evident; a different view by another judge or an erroneous conclusion of law is not a ground for review
- Failure to acknowledge receipt of court process is not sufficient proof that service was not effected; cross-examination of the process server is the proper course where service is disputed
- Setting aside ex parte orders is a judicial discretion exercised to do justice, not to reward a party who deliberately obstructed the cause of justice
Court orders
#- 1.The Notice of Motion dated 12th February 2019 is dismissed with costs to the Plaintiff
- Jurisdiction invoked
- Sections 3A, 1A and 1B of the Civil Procedure Act; Order 22 Rule 22, Order 45 Rule 1 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mvita Bottlers Limited v Suncanvas Limited & 2 others [2019] KEELC 3287 (KLR)", Case Analysis (2019). Notice of Motion dated 12th February 2019 (in Environment and Land Court suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3287/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.