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High CourtAllowed· [2020] KEHC 2169 (KLR)

BANK OF AFRICA LIMITED v SET LIGHT SUPERMARKET LIMITED & 4 others

High Court of Kenya
5 October 2020
FTF. Tuiyott
1,003 words in judgment
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The bottom line

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Defective service can invalidate a court judgment, allowing defendants to have it set aside as a matter of right.

What this practically means

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Executive summary

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Ex parte judgment was entered against five Defendants on 14th March 2017 after the Plaintiff obtained leave on 12th October 2016 for substituted service by registered post and advertisement in the Daily Nation. Service was evidenced by an affidavit of Edward Kipchumba Bett attaching the published Notice and proof of registered mail to a common postal address. The Defendants moved by Notice of Motion dated 10th December 2019 to set aside the judgment. The 2nd Defendant, Francis Kihiko Njuguna, denied seeing the advertisement and said the postal address had been repossessed by the Postal Corporation of Kenya. The court compared the first process server's efforts with those of the second process server, Mr. Nyamai, who served the Notice to Show Cause in December 2019: the second server readily traced the 2nd Defendant's residence at Komarock Phase IV and the 5th Defendant's business in Kikuyu Town, serving the sons of each. The court held the first process server had not done enough to justify substituted service and that leave had been obtained on insufficient effort. It reiterated that personal service is always preferred and that the strength or weakness of a defence is irrelevant where service was defective. The ex parte judgment was set aside as a matter of right, the motion was allowed as prayed, and the Defendants were ordered to file and serve their Statements of Defence within 14 days. No costs order was made. The ruling was delivered virtually pursuant to COVID-19 directions issued by the Chief Justice on 17th April 2020.

Key legal issues

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01

Whether leave for substituted service was properly obtained

Holding

Leave was obtained on the basis of insufficient effort by the first process server and the resulting ex parte judgment was set aside as a matter of right

Reasoning

The court compared the diligence of the first process server (Bett) with the second process server (Nyamai) who served the Notice to Show Cause. The second server easily traced the 2nd Defendant's residence and the 5th Defendant's place of business, showing the first server's efforts were inadequate. The court held the strength of the defence was irrelevant; defendants deserve personal service.

p. 2

Legal principles established

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  • Personal service is preferred; substituted service requires demonstration of sufficient effort at personal service before it is resorted to
  • A defendant is entitled to have an ex parte judgment set aside as a matter of right where substituted service was founded on insufficient effort; the strength of the defence is irrelevant

Court orders

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  1. 1.The ex parte judgment obtained by way of substituted service is set aside as a matter of right
  2. 2.The Notice of Motion dated 10th December 2019 is allowed as prayed
  3. 3.The Defendants to file and serve their Statements of Defence within 14 days of the order
Jurisdiction invoked
Original civil jurisdiction of the High Court; application to set aside ex parte judgment under the court's inherent power/rules of procedure (provision not stated in the 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, "BANK OF AFRICA LIMITED v SET LIGHT SUPERMARKET LIMITED & 4 others", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.