[2018] KEHC 6183 (KLR)
The court found that, given the conflicting accounts between the defendant and the process server regarding service of summons, and in the absence of cross-examination to test the process server's credibility, it was appropriate to exercise judicial discretion in favour of setting aside the default judgment. The...
Source-derived case information.
- Citation
- [2018] KEHC 6183 (KLR)
- Parties
- Plaintiff: Henry K. Tanui; Defendant: Paul K. Matumbi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 157 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment and Stay Execution
- Outcome
- Application allowed; default judgment and all orders set aside; defendant granted leave to defend.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Service of Summons, Setting Aside Default Judgment, Defamation, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry K. Tanui
Plaintiff
Paul K. Matumbi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment and Stay Execution
Legal Issues
- 1 Whether the defendant was properly served with summons to enter appearance.
- 2 Whether the default judgment should be set aside for lack of proper service.
- 3 Whether the defendant should be granted leave to defend the suit.
Ratio Decidendi
The court found that, given the conflicting accounts between the defendant and the process server regarding service of summons, and in the absence of cross-examination to test the process server's credibility, it was appropriate to exercise judicial discretion in favour of setting aside the default judgment. The court emphasized the importance of proper service as a foundation for regular proceedings and held that, in the face of doubt, the rules of natural justice require that the affected party be given an opportunity to be heard. Consequently, the judgment and all consequential orders were set aside, and the defendant was granted leave to file a defence within 14 days, with directions...
Court Disposition
Application allowed; default judgment and all orders set aside; defendant granted leave to defend.
Orders
- The judgment delivered on 19th July, 2017 and all orders thereunder are set aside.
- The defendant shall file and serve a defence within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 157 OF 2008
HENRY K. TANUI.........................................................PLAINTIFF
VERSUS
PAUL K. MATUMBI.................................................DEFENDANT
RULING
This court delivered a judgment in favour of the plaintiff against the defendant following a suit by the plaintiff based on a defamatory letter said to have been authored by the defendant. The suit was undefended because the defendant failed to enter appearance or file a defence within the prescribed period. There was an interlocutory judgment on record following default on the part of the defendant.
There is now before me an application by the defendant seeking orders of stay of execution and setting aside the proceedings leading to the said judgment. The defendant also seeks leave to file pleadings and documents to defend the suit against him. The thrust of that application is that he was not served with summons to enter appearance and therefore not aware of the suit against him. He only came to know about the judgment when he was served with the notice of entry of the judgment as well as a copy thereof.
It is his case that the process server lied that he served the summons to enter appearance because he may not have wanted to antagonize him. The application is opposed and there is a replying affidavit by the process server and also the plaintiff herein.
The application was canvassed by way of written submissions. The purpose of service of summons or any pleadings for that matter under Civil Procedure Rules is to alert the other party of any action taken or to be taken in any proceedings. In effect, it is to give notice to the party said to have been served of any matter that may ultimately affect him adversely. In the event the court is satisfied that summons to enter appearance in any litigation was properly served, then the consequences of default on the parties so served cannot be faulted.
On the other hand, if there is any doubt whatsoever that serve was not effected or properly effected, the court is bound by the rules of natural justice to set aside any proceedings that may have taken place in the absence of the party claiming not to have been served.
The order sought is discretionary and several cases have addressed the issue of the court’s discretion in that regard. It is true that the onus is on the plaintiff to prove that summons was properly served. – see Lochab Brothers Limited vs. Lilian Mumbi Ng’ang’a & 2 Others (2014) e KLR. In the event there is no proper service then there cannot be any regular judgment in default. Where however judgment is a regular one, then the court has the discretion to set it aside and any other orders that flow therefrom so as to achieve justice on the part of the parties. – see Total Kenya Limited Vs. Supa Haulers Limited HCCC No. 939 Of 2002.
The defendant has faulted the process server while the process server has demonstrated service upon the defendant not only of summons to enter appearance, but also other notices as shown in his replying affidavit. Under such circumstances, the defendant should have asked for cross examination of the process server to test his credibility. That notwithstanding, a court is presented with a situation where it is the word of the defendant against that of the process server.
That being the case, I am inclined to exercise my discretion and set aside the judgment entered against the defendant while observing that, in the event the plaintiff was correct in the evidence adduced leading to the said judgment, the court that shall be seized of the same proceedings hereafter may arrive at the same conclusion. Therefore the judgment delivered on 19th July, 2017 and all orders thereunder is hereby set aside. The defendant shall file and serve a defence within 14 days from the date of this ruling. The parties shall thereafter conduct pre-trial within 30 days so that the suit may be heard expeditiously. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 15th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE