[2012] KEHC 585 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

Civil Case 353 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>

14. 00

</xml><![endif][if gte mso 9]><xml>

Normal 0

false false false

EN-US X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]

GICHIMU MWAU.................................................................................PLAINTIFF

VERSUS

1. MACHO CREDIT LIMITED

2. MESSERS MUHORO t/a EDMUND ENTERPRISES

3. KINLAND KENYA LIMITED

4. COASTAL SEA FOOD.......................................................DEFENDANTS

R U L I N G

Before me is an application by way of Chamber Summons dated 8th April 2010. The application was filed by the 1st defendant under section 3A of the Civil Procedure Act (Cap 21) and Order 1XA Rule 10 and 11 of the Civil Procedure Rules. It seeks for orders as follows:-

1. THAT this Honourable court be pleased to stay execution of the decree arising from the ex-parte judgment entered on the 28th day of November 2002, particularly requiring the directors of the 1st defendant to appear in court for examination as to means of satisfying the decree.

2. THAT this Honourable Court be pleased to set aside the ex-parte (judgment) entered against the 1st defendant on 28th November 2001 together with all consequential orders made thereunder.

3. THAT the Honourable Court be pleased to grant the 1st defendant leave to enter appearance.

4. THAT costs of this application be provided for.

The application was filed with a supporting affidavit sworn on 8th April 2010 by Muktar Parker described as a director of the 1st defendant. Annexed to the said affidavit as “MP3” is a draft statement of defence. It is deponed in the said affidavit that service of summons was not proper, as it was alleged to have been done through the post. It was also deponed that the 1st defendant had a good defence.

The application is opposed. A replying affidavit sworn on 21st July 2010 by Gichimu Mwai the plaintiff was filed. It was deponed that the summons and plaint sent through the post were received by the 1st defendant and, after opening the same, they sealed the envelope and returned it to the post office with remarks “unknown on this address RTS.”

The 1st defendant filed a supplementary affidavit sworn by Muktar Parker on 20th September 2010 in response to the replying affidavit. It was denied that the summons sent by registered mail was collected by the 1st defendant’s employee Mr J.K. Katisya.

The 1st defendant through counsel M/s Odera Obar & Companyfiled written submissions on 15/11/10. The plaintiff through counsel M/s C Muriithi filed his written submissions on 21/2/2011. Case authorities were relied upon in the submissions on both sides.

I have considered the application, documents filed and the authorities cited. In Patel –vs- EA Cargo Handling Services Ltd (1974) EA 75 at page 76, the Court of Appeal for East Africa stated:-

“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just…….

The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given by the rules.”

The court also held that the exercise of the court’s discretion to set aside an ex-parte judgment should be anchored on there being an arguable defence, that is, a defence that raises triable issues.

I have perused the copy of the envelope that was said to have been posted under registered mail to Macho Credit Ltdthe 1st defendant. It is endorsed “unknown on this address RTS”. The plaintiff has not come out affirmatively to confirm that the address used was for Macho Credit Ltd. The fact that a director used that post office box number is neither here nor there as the letter was not addressed to the director. There is no evidence that the envelope was opened by anybody in the company. The legal requirements for service of process on a company were not satisfied by the plaintiff –See Remco Ltd. –vs- Mistry Jadva Parbat Ltd (2002) 1 EA 233. Posting a letter as a means of service of process is a last resort, after attempts are made to serve the Secretary, Director or other Principal Officer of the company. No such attempt was made herein. Therefore, even assuming the correct address was used, the postage per se cannot be said to be proper or adequate service.

I have also perused the draft defence, and find that it raises triable issues.

Considering all the facts and circumstances of the matter, I find sufficient reason to allow the application, as this court should promote dispensation of substantive justice in line with the principles of the Constitution (2010) Article 159 (2) (d), which requires courts not to give undue weight to technicalities. After all, the plaintiff can always be compensated in costs, if he wins the case.

In conclusion, I allow the application dated 8th April 2010 and grant prayers 1, 2 and 3. The filing of the 1st defendant’s documents will be done within the next 14 days. Costs in the cause.

Dated and delivered this 21stday of November 2012.

George Dulu

Judge

In the presence of:

Mr Mureithi for Plaintiff/Respondent

Mr E.K. Gitonga holding brief for Ms. Migiro for 1st Defendant/Applicant

N/A for 2nd – 4th Defendants

Nyalo – Court clerk