Koriata & another v Furahia Africa Limited
The bottom line
#A Kenyan court refused to overturn a default judgment because the company was properly served by registered post and offered no defence.
What this practically means
#Executive summary
#Key legal issues
#Whether service by registered post on the defendant corporation was proper under Order 5 rule 3
Service was proper; the process server attached a legible original posting receipt and counsel's letter notifying the defendant of service by registered post, and the defendant did not deny the postal address was its own.
Order 5 rule 3 allows a plaintiff to elect a mode of service on a corporation, including registered post to the registered postal address where officers cannot be found. The affidavit of service deposed to service by registered post with the original receipt dated August 10, 2018 attached, which the court found legible. The defendant never denied ownership or use of the postal address, so the judgment founded on that service was regular.
Whether the court should exercise its discretion to set aside the regular ex-parte judgment
The discretion was declined: the applicant neither availed a draft defence raising triable issues nor sought leave to defend, and the application was not made in good faith.
The court has discretion to set aside default judgment on just terms, guided by Shah v Mbogo and Patel v East Africa Cargo Services. The discretion exists to relieve against accident, inadvertence or excusable mistake, not to assist a party who obstructs justice. A regular judgment is set aside only where a defence on the merits is shown; here no draft defence or application for leave to defend was presented.
Legal principles established
#- A party may elect the mode of service on a corporation under Order 5 rule 3, including service by prepaid registered post to the registered postal address.
- A regular judgment will not usually be set aside unless the applicant shows a defence on the merits.
Court orders
#- 1.The notice of motion dated October 11, 2022 is dismissed
- 2.Costs of the application to the respondents
- Jurisdiction invoked
- Order 22 rules 22 and 25, Order 10 rule 11 and Order 51 rule 15 of the Civil Procedure Rules; section 3A of the Civil Procedure Act; article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koriata & another v Furahia Africa Limited", Case Analysis (2022). Environment & Land Case 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14755/eng@2022-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.