Hasgeman & Company Limited & 2 others v Mahendra G. Patel & 3 others
The bottom line
#A Kenyan court set aside its own judgment because a company was never properly served with court papers, giving it 30 days to finally defend itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 27th February 2023 should be reviewed and set aside
Yes - the judgment and proceedings were set aside because Alpha Grain Millers Limited was never properly served with summons, pleadings or hearing notices
The court found no evidence that the 2nd Defendant was served with summons to enter appearance or subsequent notices, and the Plaintiffs conceded there was no physical service. Citing the audi alteram partem rule, the court held the 2nd Defendant was entitled to be heard, making it fair and just to set aside the judgment and allow it to file its defence.
Standard for service by affixing where defendant cannot be found
The serving officer must demonstrate reasonable and due diligence, including the number of attempts made to find the defendant
The court interpreted Order 5 Rule 14 as requiring demonstrated effort: the affidavit of service must show the number of attempts to find the defendant and that the officer laboured to search the defendant's whereabouts before resorting to affixing service.
Legal principles established
#- Service by affixing under Order 5 Rule 14 requires the serving officer to demonstrate reasonable and due diligence in attempting to locate the defendant, shown in the affidavit of service
- A judgment entered against a party never served with summons and pleadings is liable to be set aside so that the party may be heard
Court orders
#- 1.The proceedings of the court and judgment delivered on 27th February, 2023 are set aside
- 2.The 2nd defendant in ELC No. 1201 of 2016 (Alpha Grain Millers) is granted 30 days from 23rd November 2023 to file its defence, witness statements, documents and trial bundle
- 3.Each party to bear own costs of the applications
- Jurisdiction invoked
- Inherent review and setting-aside powers under the Civil Procedure Act (Section 80) and Civil Procedure Rules, 2010 (Order 45, Order 5)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hasgeman & Company Limited & 2 others v Mahendra G. Patel & 3 others", Case Analysis (2023). Environment & Land Case 131 of 2015 & 1201 of 2016 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22000/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.