https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/456

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E294 OF 2023** **GREENLIFE CROP PROTECTION AFRICA LIMITED.....................................PLAINTIFF** **VERSUS** **KWALE INTERANTIONAL SUGAR CO. LTD…………..……………………DEFENDANT** **RULING** 1. Before Court are two applications filed by the Defendant. 2. The first is the Notice of Motion dated 26th May 2026 seeking principally that the orders issued on 11th May 2026 be set aside and that the Plaintiff's Notice of Motion dated 29th April 2026 be heard inter partes. 3. The second is the Notice of Motion dated 9th June 2026 seeking stay of execution of the said orders and the Notice to Show Cause issued pursuant thereto pending the hearing and determination of the application dated 26th May 2026. 4. Both applications are opposed by the Plaintiff through Replying Affidavits sworn by Robert Kinyanjui Mbugua and written submissions. 5. Having considered the pleadings, affidavits, annexures and rival submissions, the issues falling for determination are: 6. Whether the Defendant has established sufficient grounds to warrant setting aside the orders issued on 11th May 2026. 7. Whether execution should be stayed. 8. Costs. Whether sufficient grounds have been established 1. The impugned orders were made after the Court was satisfied that the Plaintiff's application dated 29th April 2026 had been served upon the Defendant. 2. The Defendant's case is that it never became aware of the application because service was effected through the email address law@njuruadv.co.ke, belonging to an advocate who had left the firm in December 2025. It contends that the firm's official email address was info@lloydandpartners.co.ke and failure to notify the Plaintiff of that change was an inadvertent mistake which ought not to be visited upon the Defendant. 3. Conversely, the Plaintiff argues that service was proper because the Defendant itself designated law@njuruadv.co.ke as its address for service in the Memorandum of Appearance and continued using that address throughout the proceedings, including in written submissions filed on 25th September 2025. According to the Plaintiff, no formal notice of change of address was ever served upon either the Plaintiff or the Court. 4. There is considerable force in the Plaintiff's argument. 5. Parties are ordinarily bound by the addresses they elect for service. A litigant who changes an address for service bears the responsibility of notifying both the Court and the opposing party. Failure to do so ordinarily cannot invalidate service effected through the address previously supplied. 6. Indeed, the Defendant concedes that the email used had consistently been utilised throughout the proceedings. Its explanation is simply that the advocate using the email subsequently left the firm. That omission was clearly internal to the Defendant's advocates. 7. However, that is not the end of the matter.The discretion to set aside ex parte orders is not exercised solely on whether service was technically proper. The Court must also consider whether refusal to set aside would occasion injustice. 8. The guiding principles remain those stated in Shah v Mbogo [1967] EA 116, namely that discretion exists to avoid injustice arising from accident, inadvertence or excusable mistake but not to assist a litigant deliberately seeking to obstruct justice. 9. Similarly, in Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR, the Court reiterated that mistakes of counsel should not necessarily be visited upon innocent litigants where justice can still be done without prejudice incapable of compensation by costs. 10. The orders issued on 11th May 2026 are particularly far-reaching. They permit examination of the Defendant's directors, lifting of the corporate veil, attachment of personal assets and eventual committal to civil jail. 11. These are extraordinary remedies which significantly affect not only the Defendant company but also individual directors who were not heard before those orders were issued. The Court has also noted that the Defendant has annexed a draft response raising substantive questions regarding: 12. whether circumstances exist to justify lifting the corporate veil; 13. the amount outstanding under the decree; 14. payments already made amounting to Kshs. 2,175,833.04; 15. whether execution against directors is legally justified. 16. Without expressing any opinion on the merits of those issues, they cannot be described as frivolous.The Court is therefore persuaded that although service was effected through the Defendant's last known address for service, the explanation offered regarding the failure to receive the documents constitutes sufficient cause to invoke this Court's discretion. 17. This conclusion is reinforced by Article 50 of the Constitution, which guarantees every party the right to be heard before adverse orders are made. 18. The Court is alive to the Plaintiff’s complaint that it has waited for a considerable period to realise the fruits of its judgment. That prejudice is real. Nevertheless, such prejudice can adequately be ameliorated through appropriate conditions. Whether stay should issue 1. Having found that the orders of 11th May 2026 ought to be set aside, the second application largely becomes spent. The Notice to Show Cause, warrants and all consequential execution proceedings were founded upon those orders. 2. Once those orders are vacated, the foundation upon which the execution rests equally falls. Accordingly, the prayer for stay is overtaken by events. Appropriate conditions 1. The Plaintiff urges the Court to require deposit of Kshs.11,807,458.96 before granting the Defendant audience. Ordinarily, where a regular ex parte order is being set aside, the Court may impose terms that are just. 2. In the present matter, however, the Plaintiff's application dated 29th April 2026 itself seeks to determine whether the Defendant's directors ought personally to answer for the decretal sum. 3. Compelling the Defendant to deposit virtually the entire disputed outstanding amount before hearing that application would substantially determine the matter in advance. The Court is therefore not persuaded that such a condition would be proportionate. 4. However, the Plaintiff has undoubtedly incurred costs occasioned by the Defendant's failure to update its address for service. Those costs ought to be compensated. **Disposition** 1. Accordingly, the Court makes the following orders: 2. The Defendant's Notice of Motion dated 26th May 2026 is allowed. 3. The orders issued on 11th May 2026 together with all consequential orders, including the Notice to Show Cause and all execution proceedings founded thereon, are hereby set aside. 4. The Plaintiff's Notice of Motion dated 29th April 2026 shall be heard inter partes. 5. The Defendant shall file and serve its Replying Affidavit, if not already on record, together with any further documents within seven (7) days. 6. The Plaintiff may file a supplementary affidavit, if necessary, within seven (7) days thereafter. 7. The application dated 29th April 2026 shall thereafter be fixed for hearing. 8. As a condition for the setting aside of the ex parte orders, the Defendant shall pay the Plaintiff thrown-away costs of Kshs.40,000/= within fourteen (14) days, failing which the orders made herein shall automatically lapse. 9. In view of the orders made above, the Notice of Motion dated 9th June 2026 is overtaken by events and is marked as spent. 10. Costs of the application dated 26th May 2026 shall abide the outcome of the Plaintiff's Notice of Motion dated 29th April 2026. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**