[2000] KEHC 430 (KLR)
The court found that there were serious doubts as to whether proper service was effected on the applicant. The process server did not leave the summons in the registered offices of the company as required by law, and the receptionist denied being empowered to receive summons or being properly identified. As proper...
Source-derived case information.
- Citation
- [2000] KEHC 430 (KLR)
- Parties
- Plaintiff: David C. Mwangi t/a Sam & Sema Market Centre; Defendant: Occidental Insurance Co. Ltd; Applicant: Azari Insurance Brokers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 957 of 1999
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Default Judgment and for Stay of Execution
- Outcome
- application allowed; default judgment and subsequent orders set aside
- Judges
- JK Mulwa
- Legal Topics
- Service of Process, Default Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David C. Mwangi t/a Sam & Sema Market Centre
Plaintiff
Occidental Insurance Co. Ltd
Defendant
Azari Insurance Brokers
Applicant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Default Judgment and for Stay of Execution
Legal Issues
- 1 Whether there was proper service of summons on the applicant as required by law.
- 2 Whether the default judgment entered against the applicant should be set aside due to improper service.
Ratio Decidendi
The court found that there were serious doubts as to whether proper service was effected on the applicant. The process server did not leave the summons in the registered offices of the company as required by law, and the receptionist denied being empowered to receive summons or being properly identified. As proper service is a prerequisite for entering default judgment, the court held that the default judgment and subsequent orders must be set aside. The application for stay of execution and setting aside the judgment was therefore allowed.
Court Disposition
application allowed; default judgment and subsequent orders set aside
Orders
- The application for stay of execution and setting aside the default judgment is allowed.
- The default judgment and all subsequent orders are set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA NAIROBI
Civ case 957 of 99
DAVID C. MWANGI t/a SAM & SEMA MARKET CENTRE……………………………………..PLAINTIFF
-VERSUS
OCCIDENTAL INSURANCE CO. LTD……………………… 1ST DEFENDANT
AZARI INSRUANCE BROKERS …………………………2NDEFENDANT/APPLICANT
RULING
The Applicant is asking for a Stay of Execution and setting aside the default Judgment entered against it on the grounds that there was no proper service on the applicant. The application is supported by an affidavit of Marion Mutuota. I have considered the contents of this affidavit and I have also considered the submissions by the counsels.
The defendant being a Company it would suffice if the summons were left in the registered offices of the Company. The return of service of Mungai shows that the documents were left with the receptionist. He does not say that handing them over was part of the service by way of leaving them in registered offices of the Company. He says that the receptionist told him that she was empowered to receive summons. She now denies having said so and further denies that the process server identified himself to her. There are therefore serious doubts as to whether proper service was effected since the process could only have properly effected the service by leaving the summons in the offices of the Defendant which he did not.
For these reasons, I would allow the application and set aside the judgment and the subsquential orders.
The costs shall be in course.
Dated and delivered this 25th day of February, 2000.
KASANGA MULWA
JUDGE