Assia Pharmaceutical Limited v Mwakwaya (Civil Appeal E009 of 2024) [2026] KEHC 430 (KLR) (23 January 2026) (Judgment) Neutral citation: [2026] KEHC 430 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MALINDI CIVIL APPEAL E009 OF 2024 M THANDE, J JANUARY 23, 2026 BETWEEN ASSIA PHARMACEUTICAL LIMITED ............................................... APPELLANT AND SAMSON KAZUNGU MWAKWAYA ................................................ RESPONDENT JUDGMENT 1. The Appellant herein is aggrieved by the ruling delivered on 16.1.24 in Malindi CMCC No. 239 of 2018 in which the trial Magistrate dismissed its application dated 18.9.23. 2. The Appellant has filed this Appeal raising the following grounds: 1. The Learned Magistrate erred in law and in fact in shifting the burden of proof of service of court process on the Appellant. 2. The Learned Magistrate misdirected himself by not appreciating that the Respondent ought to have proven service of court process on the Appellant. 3. The Learned Magistrate erred in law in fact in failing to appreciate that the proceedings were un-procedurally conducted in breach of the Appellant’s right to be afforded an opportunity of being heard. 4. The Learned Magistrate misdirected himself by failing to sufficiently address himself to the principles that govern setting aside of judgments and hence misdirected himself in the exercise of his discretion. 5. The Learned Magistrate erred in law and in fact in failing to appreciate that the Appellant had a Defence on record, therefore, the matter should not have been set down for formal proof hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/430/eng@2026-01-23 1
page 1 of 4
6. The Learned Magistrate erred in law and in fact in holding that the Appellant’s Defence did not raise a triable issue whereas it was not an issue for the court’s determination. 7. The Learned Magistrate fundamentally erred in determining a matter that was statute barred for limitation. 8. The Learned Magistrate grossly erred in failing to consider that the leave purportedly relied upon by the Respondent to initiate the proceedings before was obtained against another party, and not the Appellant herein. 9. The Learned Magistrate fundamentally erred in failing to find that the issue as to whether or not the matter was statute barred is a triable issue to be ventilated at a full trial. 10. The Learned Magistrate has conducted these proceedings in a biased manner that has previously required the intervention of the High Court in its supervisory jurisdiction. 3. The Appellant prayed that the Appeal be allowed with costs and that the impugned ruling and resultant order be set aside and that the judgment of 18.7.23 and any consequential order arising therefrom be set side. The Appellant also prayed that the suit in the lower court be dismissed. 4. Being a first appeal, this Court is called upon to re-assess and analyze the evidence on record being mindful that it neither saw nor heard the witnesses testify. (See Selle v Associated Motor Boat Co. [1968] EA 123). 5. The record shows that the Respondent had instituted a suit by way of a plaint dated 20.6.18 against the Appellant seeking damages for injuries sustained in a road traffic accident which occurred on 6.11.09 at Mferejini, along the Mombasa- Malindi Road. On 29.7.21, judgment in default of appearance and defence was entered against the Appellant. Pursuant to an application by the Appellant, the default judgment was set aside and the Appellant was directed to file its defence within 14 days and set down the matter for pretrial directions thereafter. The record further shows that on 6.6.23, judgment was entered against the Appellant in default of filing defence as directed. The matter proceeded to formal proof and judgment was on 18.7.23 entered in favour of the Respondent. Thereafter the execution process commenced. 6. The Appellant then filed an application dated 18.9.23, seeking stay of execution of the judgment and warrants of attachment as well as the setting aside of the said judgment. The application was dismissed in the ruling of 16.1.24 that is the subject of this Appeal. 7. In the impugned ruling, the Hon. Magistrate noted that the Appellant did not demonstrate that he had served the defence upon the Respondent and that the Respondent did not demonstrate service of the hearing notice upon the Appellant. He further found as follows: The defendant has itself to blame for failing to set the matter for pretrial as directed in the court’s ruling which required that it files defence within 14 days and set the matter down for pre-trial directions. The plaintiff was justified to set the matter for hearing and proceed as he did and in my view the consequential judgment was regular and could only be set aside if there is a defense which raises triable issues. I have perused the defense filed which I find to contain ere general denials which does not raise a single triable issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/430/eng@2026-01-23 2
page 2 of 4
8. I will begin with the ground that the suit was statute barred as it goes to the jurisdiction of a court to deal with a claim before it. Where it is demonstrated that a suit is statute barred, the court has no jurisdiction to entertain the same unless leave to file suit out of time has been granted. 9. In the instant case, there is on record an order dated 21.6.18 granting the Respondent leave to commence suit against Assia Animal Health Limited out of time. The Appellant contends that the leave was obtained in respect of another party and not the Appellant. The Court however notes that while the name in the order granting leave is different from that of the Appellant, the Respondent has demonstrated by means of certificates, that there has been a change of name of the Appellant to Assia Animal Health Limited on 28.5.09 and then to Bimed Limited on 7.12.12. 10. Section 66 of the Companies Act provides as follows regarding the effect of change of a company’s name: (1) A change of a company's name has effect from the date on which the certificate of change of name is issued. (2) The change does not affect any rights or obligations of the company or invalidate any legal proceedings by or against it. (3) Any legal proceedings that might have been continued or commenced against it by its former name may be continued or started against it by its new name. 11. The law is that the change of name of a company does not affect accrued rights or obligations, nor does it render legal proceedings by or against it defective. This is no doubt because in spite of the change of name, the entity remains one and the same. This was the tenor of the holding in the case of Shell & BP (Malindi) Kenya Ltd v Kings Motors Ltd [2004] eKLR. 12. The Appellant further argued that the application for leave was still open for the court to determine if the Respondent was justified in filing the suit 9 years after the cause of action arose. The Court notes that the order granting leave also directed that the application was to be served for inter partes hearing on 16.7.18. This does not however negate the fact that leave was indeed granted. The order for leave thus remains valid. 13. In light of the foregoing, the ground that the suit was statute barred fails. 14. The next issue for consideration and determination is whether the Appellant complied with the directions of the court in its ruling dated 19.4.23. While setting aside the judgment of 8.12.21, the court directed the Appellant to file and serve its defence in 14 days and set down the matter for pretrial directions thereafter. 15. In its application dated 18.9.23, pursuant to which the impugned ruling was delivered, the Appellant stated that the ruling setting aside the judgment of 8.12.21 was delivered on 7.10.22. Further that it filed its statement of defence and other pleadings on 21.10.22 and served the same on the Respondent. The Appellant exhibited an email sent to this Court’s registry on that date as evidence. This is denied by the Respondent in a replying affidavit sworn by his counsel on 28.11.23. 16. A careful perusal of the record shows that the said ruling was delivered on 12.9.22 and not 7.10.22. Further, in the exhibited email dated 21.10.22, the Appellant’s advocates forwarded the statement of defence, list of witnesses and list of documents for assessment and asked to be advised once the invoice was raised. This was done not within 14 days as directed but about 39 days later. This notwithstanding, the Appellant has not provided any evidence to demonstrate that it did in fact obtain the invoice and pay the assessment fees. I accordingly find that the said defence though forwarded to the Court was not filed as alleged. In the circumstances, there was no defence on record for the trial court to consider. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/430/eng@2026-01-23 3
page 3 of 4
Having so found, it is not necessary to consider whether the trial Magistrate erred in finding that the defence raised no triable issues. 17. Further, it is noted that the Appellant failed to comply with the directions by the court that it set down the suit for pre-trial directions. Our courts have stated time without number that courts do not issue orders in vain. All orders given by a court of competent jurisdiction, are to be obeyed by every party to whom the same are directed. In the case of B vs. Attorney General [2004] 1 KLR 431 Ojwang, J. (as he then was) stated: The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people. 18. Compliance with court orders is central to the rule of law, which is one of the national values and principles of governance under Article 10 of the Constitution. Without the Appellant having filed a defence, the Respondent cannot be faulted for proceeding with the matter by way of formal proof as he did. 19. In the end and in view of the foregoing, I find that the Appeal lacks merit and the same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED IN MALINDI THIS 23RD DAY OF JANUARY, 2026 M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/430/eng@2026-01-23 4
page 4 of 4