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ELCDismissedNotice of Motion dated 12th February 2019 (in Environment and Land Court suit, Mombasa)· [2019] KEELC 3287 (KLR)

Mvita Bottlers Limited v Suncanvas Limited & 2 others [2019] KEELC 3287 (KLR)

Environment and Land Court
9 April 2019
3,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st and 3rd Defendants moved the Environment and Land Court at Mombasa by notice of motion dated 12th February 2019 under Order 22 Rule 22, Order 45 Rule 1, Order 51 of the Civil Procedure Rules and Sections 3A, 1A and 1B of the Civil Procedure Act, seeking a temporary stay of execution, review and setting aside of the ruling delivered on 14th January 2019 and orders issued on 15th January 2019 by C.K. Yano J, together with directions that the DPP prosecute the process server, Urbanus Kioko Musyoki, and that the Chief Registrar commence disciplinary proceedings against him. The Applicants contended they were never served with the pleadings or hearing notice, that the orders were procured by fraud and deceit, and that the 3rd Defendant was in Nairobi on the date of alleged service. The Plaintiff opposed, relying on the process server's affidavit of service, a registry clerk's affidavit explaining the date entry as an error, and arguing the Applicants declined to cross-examine the process server and had no triable defence. The court held that the grounds for review under Section 80 and Order 45 are restricted and that the orders of 14th/15th January 2019, made after perusing an unchallenged affidavit of service, were not reviewable on the grounds urged. It found service duly effected, treated the 3rd Defendant's travel claim as an afterthought unsupported by boarding passes, held that the proposed defence contained mere bare denials with an admission that the Plaintiff was the 3rd Defendant's special vehicle, and dismissed the motion with costs to the Plaintiff.

Key legal issues

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01

Scope of review under Section 80 of the Civil Procedure Act and Order 45

Holding

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

Reasoning

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.

p. 3
02

Whether service of the pleadings and motion was effected on the Applicants

Holding

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

Reasoning

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.

p. 3
03

Whether the proposed defence raised triable issues warranting setting aside the ex parte orders

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 12th February 2019 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 10 Rule 11
  • Constitution of Kenyarights to fair hearing, natural justice and access to justice (as invoked by Applicants)

Cases cited (10)

  • Mary Njeri v Aga Khan Health Services t/a Aga Khan Hospital & 2 Others
    (2005) eKLR
  • James Kanyiita Nderitu Philotas Ghikas & Another
    (2016) eKLR
  • James Kariuki Nganga t/a Ndaragu Merchants v Joseph Ngae Njuguna & Another
    (2004) eKLR
  • Shadrack Arap Baiwo v Bodi Bach
    (1987) KLR
  • Mauritius Bank Limited v Jade Petroleum Limited & 3 Others
    (2018) eKLR
  • Lucy Wanjiku Mkuu v Kari Salzmann Limited and another
    (2015) eKLR
  • Nuh Nassir Abdi v Ali Wario & 2 Others
    (2013) eKLR
  • National Bank of Kenya Ltd v Ndungu Njau
    (1997) eKLR
  • Patel v EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah v Mbogo
    (1967) EA 166
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

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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, "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.