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ELCDismissedEnvironment & Land Case 55 of 2018· [2022] KEELC 14755 (KLR)

Koriata & another v Furahia Africa Limited

Environment and Land Court
15 November 2022
2,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The defendant, Furahia Africa Limited, moved the Environment and Land Court at Narok by notice of motion dated October 11, 2022 seeking a stay of execution of an ex-parte judgment and decree entered on July 28, 2022 and the setting aside of that judgment ex debito justitiae, together with directions and costs. The application was anchored on 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 and article 159 of the Constitution. The defendant contended that no service was effected upon it; that the affidavit of service claimed service by registered post without a legible certificate of posting; and that the parties had always communicated by email, so the judgment was procured behind its back. The plaintiffs opposed, asserting that service by registered post to the defendant's postal address - the same address used for the lease - was duly effected and evidenced by an original posting receipt and a letter from their counsel, that the defendant was estopped from denying the address, and that the defendant had no arguable defence, having filed none. The plaintiffs also stated they had taken possession under the judgment. Mbogo J framed the sole issue as whether the application had merit. Construing Order 5 rule 3, the court held that a plaintiff may elect the mode of service on a corporation, including prepaid registered post to its registered postal address. Finding the posting receipt legible and the defendant's ownership and use of the postal address undenied, the court held service was proper and the judgment regular. Applying Shah v Mbogo and Patel v East Africa Cargo Services, the court declined to exercise its discretion because the applicant had not exhibited a draft defence raising triable issues nor sought leave to defend, and the application was not made in good faith. The motion was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether service by registered post on the defendant corporation was proper under Order 5 rule 3

Holding

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.

Reasoning

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.

p. 5
02

Whether the court should exercise its discretion to set aside the regular ex-parte judgment

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The notice of motion dated October 11, 2022 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rules 22 and 25
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 51 rule 15
  • Civil Procedure RulesOrder 5 rule 3
  • Civil Procedure Actsection 3A
  • Constitution of Kenyaarticle 159
  • Constitution of Kenyaarticle 159(2)(b)

Cases cited (16)

  • Agigreen Consulting Corp Limited v National Irrigation Board
    [2020] eKLR

    Improper service by registered post where no evidence of service attached

  • Total Kenya Limited v Supa Hauliers Limited
    [2003] eKLR

    Service requirements

  • Gulf Fabricators v County Government of Siaya
    [2020] eKLR

    Setting aside default judgment and triable issues

  • James Kanyita Nderitu v Marie Philotas Ghika & Another
    [2016] eKLR CA No 6 of 2015

    Legibility and evidential value of certificates of posting

  • David Koome Matugi v APA Insurance Limited
    [2021] eKLR

    Burden of proof of alleged non-service lies on the party alleging it

  • Shah v Mbogo & Another
    [1967] EA 116

    Discretion to set aside ex-parte judgment is to avoid injustice, not to assist those obstructing justice

  • Water Painters International v Benjamin Ko'goo t/a Group of Women in Agriculture Kochieng (Gwako) Ministries
    [2014] eKLR

    Consequences of default

  • Jomo Kenyatta and University of Agriculture and Technology v Musa Ezekiel Oebal
    [2014] eKLR

    Setting aside default judgment

  • Rayat Trading Company Limited v Bank of Baroda & Tetezi House Limited
    [2018] eKLR

    Setting aside default judgment

  • Shadrack Arap Baiywo v Bodi Bach
    [1987] eKLR

    Need to demonstrate a defence raising triable issues

  • Thomas Odhiambo Okello v Peter Wanyama
    [2019] eKLR

    Triable issues required to set aside judgment

  • Nelly Wanjiru Njenga v Robinson Maina & 3 Others
    [2021] eKLR

    Triable issues required to set aside judgment

  • Flora Cherono v Mary Njihia & 7 Others; Daniel Nyaga Munyambo & 7 Others
    [2021] eKLR

    Triable issues required to set aside judgment

  • Carol Silcock v Sharrif Mohamed
    [2013] eKLR

    Setting aside default judgment

  • Stephen Wanyee Roki v K-Rep Bank Limited & 2 Others
    [2018] eKLR

    Setting aside default judgment

  • Patel v East Africa Cargo Services Ltd
    (1974) EA 75

    Regular judgment not set aside unless a defence on the merits is shown

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

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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, "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.