GA Insurance Limited v Ainu Shamsi Automobile & Hardware Ltd & 4 others (Civil Suit 915 of 2013) [2023] KEELC 415 (KLR)
The bottom line
#A Kenyan court set aside a default judgment because the defendant was never properly served, ruling such judgments are void as a matter of right.
What this practically means
#Executive summary
#Key legal issues
#Whether service on the 1st Defendant was proper
Service was improper: it was effected on a person unknown ('George') at the reception of a sister company (A S Energy) whose stamp was affixed, without proof of authority to receive service on behalf of the 1st Defendant
Order 5 Rule 3 and Order 9 Rule 2(c) of the Civil Procedure Rules require service on a corporation to be effected on an officer duly authorized under the corporate seal. The process server served an unverified receptionist at a different company's offices, and no authority was exhibited. The burden of proving George's authority lay on the process server and the Plaintiff, and was not discharged. Service must be intentional and deliberate, directed to the named party or authorized agent.
Whether the resultant judgment was regular and whether it could be set aside
The judgment was irregular and a nullity, and was set aside ex debito justitiae as a matter of right, not as an exercise of discretion
Following Macfoy v United Africa Co Ltd and James Kanyita Nderitu v Maries Philotas Ghika, proceedings founded on no service are nullities. An irregular judgment is set aside as of right; the court need not consider triable issues or delay, because the party was condemned unheard. The court also relied on Gulf Fabricators v County Government of Siaya on the centrality of proper service before interlocutory judgment.
Whether the 1st Defendant has a bona fide triable defense
Yes - the draft Statement of Defense discloses numerous bona fide triable issues, including disputed ownership of L.R. No. 209/20292 and denial of encroachment
Adopting the ratio in Patel v E A Cargo Handling Services Ltd, a triable issue need not be one that must succeed; it suffices that it raises a prima facie defence warranting trial. The draft defence disputing title, survey and alleged encroachment disclosed such issues, independently reinforcing the setting aside of the judgment.
Legal principles established
#- Where a default judgment is entered against a defendant who was not served or properly served with summons to enter appearance, it is an irregular judgment which is set aside ex debito justitiae, as a matter of right, without inquiry into triable issues or delay
- Service of court process on a corporation must be effected on an officer duly authorized under the corporate seal; proceedings founded on a judgment entered without proper service are a nullity
Court orders
#- 1.The Judgment rendered and delivered on 18th March 2022 together with the consequential orders, including the Decree and the Certificate of Taxation arising therefrom, set aside and vacated
- 2.The 1st Defendant/Applicant granted liberty to enter appearance and file the requisite Statement of Defense within 21 days
- 3.The Plaintiff and the rest of the Defendants granted leave to file and serve a Reply to the Statement of Defense within 14 days from the date of service
- 4.The Parties to file and exchange the requisite List and Bundle of documents, as well as the witness statements, within 30 days from the close of pleadings
- 5.The subject matter to be mentioned on a date to be agreed upon by the Parties after delivery of the Ruling
- 6.Costs of the Application awarded to the 1st Defendant/Applicant
- Jurisdiction invoked
- Inherent jurisdiction and discretion under the Civil Procedure Rules (Order 10 Rule 11; Orders 5 and 9) to set aside irregular default judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GA Insurance Limited v Ainu Shamsi Automobile & Hardware Ltd & 4 others (Civil Suit 915 of 2013) [2023] KEELC 415 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/415/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.