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ELCAllowedNot stated in the judgment excerpt· [2019] KEELC 3665 (KLR)

Richard Kipyego Sawe v Barclays Bank of Kenya Ltd & another [2019] KEELC 3665 (KLR)

High Court of Kenya (sitting at Eldoret)
25 April 2019
660 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court reinstated a dismissed commercial suit because the other side could not prove the plaintiff was properly served before the hearing.

What this practically means

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Executive summary

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This ruling by A. Ombwayo J at Eldoret determined an application dated 7 August 2018 seeking reinstatement of the plaintiff's suit, which had apparently been dismissed after the plaintiff failed to attend the hearing of 18 June 2018. The plaintiff contended that it was not served with the Notice of Change of Advocates, the application for dismissal dated 6 November 2017, or the hearing notice, so its non-attendance was not deliberate. The respondent's advocate, Martin Osodo, maintained that service was effected by a licensed process server, James Otieno Okudo; however, the court noted that the process server did not state the name of the clerk served with the Notice of Motion, rendering service doubtful. The court reviewed the principles for setting aside ex-parte judgments from Patel v East Africa Cargo Handling Services Ltd and Pithon Waweru Maina v Thuku Mugira, including the wide discretion of the court, its exercise to avoid injustice from accident, inadvertence or excusable mistake, and the absence of discretion where service was improper. Holding that the right to be heard is sacrosanct and cannot be removed absent willful default despite proper service, the court allowed the application and reinstated the suit. Because the dispute was commercial in nature, the court transferred the suit to the High Court for hearing and determination, with costs in the cause.

Key legal issues

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01

Whether the suit should be reinstated where service is contested

Holding

The application to reinstate was allowed because the issue of service was contested and it was unclear whether the plaintiff was properly served

Reasoning

The court noted that the process server's affidavit did not state the name of the clerk served with the Notice of Motion, leaving service doubtful. Where service is not shown to be proper, the court's discretion to set aside and reinstate is effectively without limit. The sacrosanct right to be heard outweighs the dismissal where no willful default was demonstrated.

p. 2
02

Principles governing setting aside ex-parte judgments

Holding

The court applied the established principles: discretion is wide, exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction

Reasoning

Relying on Patel v East Africa Cargo Handling Services and Pithon Waweru Maina v Thuku Mugira, the court confirmed that a defence on the merits means a triable issue, and that the discretion to set aside ex-parte judgments is unfettered except that it must be exercised justly, judicially, and not to assist parties who deliberately obstruct the course of justice.

p. 2

Legal principles established

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  • The right to be heard in a civil matter is sacrosanct and cannot be taken away unless a party willfully and intentionally chose not to attend court despite proper service
  • The court has no discretion to uphold a judgment where there was no proper service

Court orders

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  1. 1.The application dated 7.8.2018 is allowed and the suit is reinstated
  2. 2.The suit, being a commercial dispute, is transferred to the High Court for hearing and determination
  3. 3.Costs in the cause

Authorities

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Cases cited (6)

  • Patel V East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Pithon Waweru Maina V Thuku Mugira
    (1983) eKLR
  • Shah V Mbogo
    (1967) EA 116
  • Shabir Din V Ram Parkash Anand
    (1955) 22 EACA 48
  • Kanji Naram V Velji Ramji
    (1954) 21 EACA 20
  • Smith V Middleton
    (1972) SC 30
Jurisdiction invoked
Inherent discretion of the court to set aside/reinstate under the civil procedure rules; suit transferred to the High Court as a commercial dispute

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, "Richard Kipyego Sawe v Barclays Bank of Kenya Ltd & another [2019] KEELC 3665 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3665/eng@2019-04-25

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