[2019] KEHC 5119 (KLR)
The court held that although the plaint's title omitted the words “& Company Limited,” the body of the plaint and the service of summons made it clear that the intended defendant was the company. The company received and acknowledged the summons but chose not to appear or defend the suit. The omission in the title...
Source-derived case information.
- Citation
- [2019] KEHC 5119 (KLR)
- Parties
- Appellant: Lalji Meghji Patel & Co. Ltd; Respondent: Fredrick Kamau Kiarie
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 236 of 2014
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Service of Summons, Default Judgment, Company Liability, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lalji Meghji Patel & Co. Ltd
Appellant
Fredrick Kamau Kiarie
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the omission of the words “& Company Limited” in the plaint's title invalidated the proceedings against the appellant company.
- 2 Whether the appellant company was properly served with summons and had notice of the suit.
- 3 Whether the attachment of the appellant's motor vehicle was lawful given the alleged misdescription in the plaint.
Ratio Decidendi
The court held that although the plaint's title omitted the words “& Company Limited,” the body of the plaint and the service of summons made it clear that the intended defendant was the company. The company received and acknowledged the summons but chose not to appear or defend the suit. The omission in the title was a technical error that did not prejudice the company, as it had actual notice of the proceedings. The court found that the company took a calculated risk by not participating, hoping the technicality would shield it from liability. The attachment of the company’s motor vehicle was therefore lawful, as the judgment was properly entered against the company. The appeal was...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The attachment of the appellant's motor vehicle stands.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NUMBER 236 OF 2014
LALJI MEGHJI PATEL & CO. LTD..............................................APPELLANT
VERSUS
FREDRICK KAMAU KIARIE......................................................RESPONDENT
(Being an Appeal against the ruling/order of Hon. Nchoe (Ag SRM) delivered
on 21st May, 2014 In Chief Magistrate’s Court case No. 2288 of 2011 at Nairobi)
J U D G M E N T
The Respondent sued Lalji Mgehji Patel in the lower court who was named as the Defendant.
Summons to enter appearance was served and acknowledged by way of endorsement of a stamp in the name of Lalji Mgehji Patel Co. ltd on 10th October, 2011. Other than the signature of the receipt, there was no other endorsement. There was no appearance entered following the service of the summons and therefore, the Respondent proceeded to prosecute his suit by way of formal proof. Subsequently, the court gave judgment in favour of the respondent in the sum of ksh.500,000/- general damages and Kshs.1,000/- special damages plus costs and interest.
What followed was an application by way of objection lodged by and on behalf of Lalji Mgehji Patel & Company Limited. The basis of that application was that, they were objecting to the attachment of motor vehicle Registration KBR 514S because they were not party to the suit. In particular it was pleaded in the application that the ex parte judgment was never entered against the objector and therefore, the objector was not a judgment debtor, yet their motor vehicle had been attached. The said judgment was therefore, erroneous and irregular in law. Further, the respondent’s cause of action was against a natural person not the company. The lower court heard that application and in a ruling delivered on 21st May, 2014 dismissed the same with costs, holding that it was an abuse of the court process. It is that ruling that triggered the present appeal.
In the lengthy Memorandum of Appeal dated 13th June, 2014, the appellant complained that no suit had been instituted against the company, but against Lalji Mgehji Patel an individual, and that the trial magistrate failed to appreciate the difference between a limited liability company and an individual. The lower court was also faulted for ignoring the authorities cited by the appellant.
In the ruling dismissing the appellant’s application the lower court stated as follows: -
“I have considered the response and submissions on record plus authorities cited. Clearly paragraph 2 of the statement of claim clearly indicates that the defendant is a company duly incorporated in Kenya. I have looked at paragraph 5 which describes the incident; the issue is not between individuals but the plaintiff and a company.”
I have considered the rival submissions filed by the parties herein. There is no doubt in law that an individual vis a vis a limited liability company are distinct legal entities. The original plaint named Lalji Mgehji Patel as the defendant in the suit. What was lacking was the words “& Company Limited”. Paragraph 2 of the plaint starts with the words “the defendant is a company duly incorporated in Kenya under the relevant laws. Service of summons upon it shall be effected through the plaintiff’s advocate’s Office”.
It has not been disputed that indeed summons to enter appearance were served upon the appellant, and acknowledgment made by endorsement of its stamp at the back of the summons. The receipt of the summons in acknowledgment of the respondent’s claim and/or plaint has not been denied.
The reference to the limited liability company in this case, the appellant, at paragraph 5 though not specifically named discounts the submissions by the appellant that it was not a party to this suit. The omission in the title of the plaint though material, could not discharge the appellant herein in terms of the description in the pleadings. It was more probable than not that the appellant knew of the plaintiff’s claim, received summons relating thereto, and took the risk of staying away from the seat of justice on the hope that, the non-description of its name will give them a window out of the claim. That was a dangerous step to take.
Having received the summons, the easiest option to take was to file a defence and deny that they are the defendants in the suit. The risk they took has resulted in adverse consequences. The person named as the plaintiff and the appellant herein, in literal interpretation is one and the same person. This is the case whereby the distinction between an individual and a limited liability company cannot be drawn.
The Respondent proved his case against the right person. In this case the limited liability company. The magistrate was right in her ruling refusing to lift the attachment of the appellant’s motor vehicle. The appeal is hereby dismissed with costs to the Respondent.
Dated, signed and delivered at Nairobi this 27th day of June, 2019.
A. MBOGHOLI MSAGHA
JUDGE