Richard Kipyego Sawe v Barclays Bank of Kenya Ltd & another [2019] KEELC 3665 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit should be reinstated where service is contested
The application to reinstate was allowed because the issue of service was contested and it was unclear whether the plaintiff was properly served
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.
Principles governing setting aside ex-parte judgments
The court applied the established principles: discretion is wide, exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
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.
Legal principles established
#- 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
#- 1.The application dated 7.8.2018 is allowed and the suit is reinstated
- 2.The suit, being a commercial dispute, is transferred to the High Court for hearing and determination
- 3.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.