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ELCAllowed· [2023] KEELC 415 (KLR)

GA Insurance Limited v Ainu Shamsi Automobile & Hardware Ltd & 4 others (Civil Suit 915 of 2013) [2023] KEELC 415 (KLR)

Environment and Land Court
26 January 2023
5,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Oguttu Mboya J) delivered on 26 January 2023 on a Notice of Motion dated 27 October 2022 by the 1st Defendant, Ainu Shamsi Automobile & Hardware Ltd. The Applicant sought stay of execution of a judgment entered on 18 March 2022 and the ensuing decree and Certificate of Taxation, setting aside of those instruments, setting aside of an attachment by Cash Gate Auctioneers, and leave to defend the suit. The Applicant contended it was never properly served with summons, service having been effected on an unknown person ('George') at the reception of a sister company, A S Energy, whose rubber stamp was affixed. The Plaintiff/Respondent argued service was proper, that Order 5 Rule 3 is not mandatory, that the affidavit of service was uncontroverted, and that the Certificate of Taxation could only be impeached under Rule 11 of the Advocates Remuneration Order. The 2nd to 5th Defendants supported setting aside the entire judgment. The court framed three issues: proper service, regularity of the judgment, and existence of a triable defence. It found service improper, the burden of proving the server's authority not discharged, and held the judgment was irregular and a nullity, to be set aside ex debito justitiae as a matter of right, relying on Macfoy, James Kanyita Nderitu and Gulf Fabricators. The draft defence disclosed bona fide triable issues. The application was allowed in full: the judgment, decree and Certificate of Taxation were set aside and vacated, the Applicant granted 21 days to enter appearance and file a defence, and costs of the application awarded to the 1st Defendant/Applicant.

Key legal issues

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01

Whether service on the 1st Defendant was proper

Holding

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

Reasoning

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.

p. 8
02

Whether the resultant judgment was regular and whether it could be set aside

Holding

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

Reasoning

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.

p. 10
03

Whether the 1st Defendant has a bona fide triable defense

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.The 1st Defendant/Applicant granted liberty to enter appearance and file the requisite Statement of Defense within 21 days
  3. 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. 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. 5.The subject matter to be mentioned on a date to be agreed upon by the Parties after delivery of the Ruling
  6. 6.Costs of the Application awarded to the 1st Defendant/Applicant

Authorities

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Legislation

  • Companies ActChapter 486 Laws of Kenya (repealed) and Companies Act 2015
  • Civil Procedure RulesOrder 5 Rule 3
  • Civil Procedure RulesOrder 9 Rule 2(c)
  • Civil Procedure RulesOrder 10 Rule 11
  • Advocates Remuneration OrderRule 11

Cases cited (9)

  • Gulf Fabricators vs County Government of Siaya
    [2020] eKLR
  • Macfoy versus United Africa Co. Ltd
    [1961] 3 All E.R. 1169
  • James Kanyita Nderitu versus Maries Philotas Ghika & Another
    [2016] eKLR
  • Mbogo & Another V Shah
  • Patel V EA Cargo Handling Services Ltd
    [1975] EA 75 / (1974) E.A 75
  • Chemwolo & Another V Kubende
    [1986] KLR 492
  • CMC Holdings Vs Nzioki
    [2004] 1 KLR 173
  • Onyango Oloo V Attorney General
    [1986 – 1989] EA 456
  • Sangram Singh V Election Tribunal, Kotch
    AIR 1955 SC 664
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

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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, "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.