https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8444

Lifescope Laboiutories v Lifescope Medical Center Limited & another (Civil Case E004 of 2025) [2026] KEHC 8444 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8444 (KLR) Republic of Kenya In the High Court at Migori Civil Case E004 of 2025 ACA Ong’injo, J June 11, 2026 Between Lifescope Laboiutories Applicant and Lifescope Medical Center Limited 1st Defendant The Registrar of Business Names 2nd Defendant Ruling 1.The application dated 4th July 2025 seeking that temporary injunction do issue restraining the 1st Defendant either by itself or through its Agents or servants or otherwise howsoever from using the domain name Lifescope in its business operations until hearing and determination of this Application was allowed against the 1st Defendant when they failed to enter appearance and respond to the application after being served. 2.Counsel for the 2nd Defendant/Respondent on 17th September, 2025 concurred with the Plaintiff/ Respondent’s Counsel that indeed the 1st Defendant/Applicant be restrained from using the domain name Lifescope in its business operations until hearing and determination of the suit, 3.The 1st Respondent was aggrieved by the said orders and vide application dated 6th October 2025 they sought for the setting aside of those orders and hearing of the application dated 4th July 2025 afresh 4.The 1st Defendant’s application is grounded on the annexed affidavit of Dickson Awino Atonga sworn on 6th November 2025 and based on the grounds on its face. 5.The Plaintiff opposed the application vide the Replying Affidavit of Elmard Onditi Okoyo. 6.The 1st Defendant/ Applicant sought and obtained leave to file further affidavit and one sworn on 2nd December, 2025 was duly filed. 7.The application was canvassed by written submissions. The Applicant’s submissions are dated 27th October, 2025. 8.The Applicant/ 1st Defendant submitted that courts are given wide discretion in setting aside ex- parte proceedings, judgments or orders. In the case of CMC Holdings Limited V. Nzioki [2004] KLR 173, the Court of Appeal pronounced itself as follows:“In an application for setting aside exparte judgment, the court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously... In law the discretion that a court of law has, in deciding whether or not to set aside exparte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.. " 10.It was further submitted that in this case, the Plaintiffs advocates swore an affidavit dated 15th July 2025, paragraph 2 and 3 of the said affidavit states:“2.That on 9th July, 20251 received an Order dated 8th July, 2025, Application and Plaint both dated 4th July 2025 from the Firm of A.A Mudanya & co. Advocates, with instructions to serve the same upon the 1st Defendant hereinThat on the same day at 17:12 hrs, I caused the said Order, Application and Plaint to be served upon the 1st Defendant via email address; li[escoeecentreüi wnuil.com and the said documents were well received Annexed herewith and mark "AAMI (a), (b) and (c) " are copies the Order, Application, Plaint and entail extract respectively).” 11.It was submitted that Mr. Alex Mudanya, is the advocate who filed and handled this matter on behalf of the Plaintiff/ Respondent in this matter. In the foregoing paragraphs of the quoted affidavit, the Applicant merely stated that he served the alleged documents on the 1st Defendant and that they were received. Unfortunately, the Plaintiff's advocate did not exhibit proof of delivery. Proof of delivery is a prerequisite in confirming whether proper service was effected. 12.The 1st Defendant/ Applicant has contested and highlighted the impropriety of the advocate for the Plaintiff [Respondent alleging that he served summons, the application and order on the 1st Defendant/ applicant. Service of process is a cardinal issue in court proceedings. That is the reason why the process server must file an affidavit to confirm service. The process served must be effected by authorized process servers licensed by the High court. It is the Appficant’s contention that Alex A. Mudanya is not a licensed Court Process Server. If he is authorized to serve the process, it cannot be in a case where he has instructions to act for the Plaintiff/ Respondent. The said advocate has an interest in the matter and he is therefore in conflict. 13.The Applicant also cited the case of Regina Waithera Mwangi Gitau v. Boniface Nthenge , where the High Court stated as follows:“On issue number one, the established principle of law is that advocates should not enter into the arena of the dispute by swearing affidavit on contentious matters of fact. By swearing an affidavit on contentious issues, an advocate thus makes himself a viable witness for cross examination on the case which he is handling merely as an agent which practice is irregular. " 14.Further the Applicants also relied on the case of Overseas Courier Services (K) Limited 1998- eKLR where the court held"it is not competent for a party's advocate to depose to evidentiary fact at any stage ofthe suit. " Emphasis supplied. 15.Similarly the Applicant also cited the holding in Regina Waithira Mwangi Gitau (SUPRA) where the Court went ahead and stated as follows:“In addition, Rule 9 of the Advocates Practice Rules prohibit advocates from appearing as an advocate in a case wherein he might be required to give evidence either by affidavit or even orally. By swearing an affidavit on behalf of his client where issues are contentious, an advocate's affidavit creates a legal muddle with untold consequences. " 16.The Respondent's Counsel may argue that he was deponing on matters within his knowledge. However, this is a contested issue. Service is cardinal. The Respondent stood to gain by the Applicant failing to enter appearance. That is why the Court must ascertain whether the service was properly effected. In this case it was not. 17.In the case of Jimba Credit Corporation Limited[19911KLR 503, the court held:-“The power to set aside exparte judgment in default is discretionary. The discretion is unfettered provided it is properly exercised. The discretion is ajudicial one and therefore it must be exercised on the basis ofevidence and sound legalprinciples. The court has power under the provisions of Order IX Rule 10 of the old Civil Procedure Rules on terms as arejust. The court is obliged to look at the defence that the applicant defendant may have to the claim, and ifa party establishes that he has a reasonable defence and which appears on the face of the pleadings to contain considerable merit, the court ought to be inclined towards setting aside. " 18.In the case of Safina Transporters Limited V. Shreeji Enterpriese (k) Limited (civil Appeal No. E019 of 2022) [20231 KEHC 25 314 (KLR ) (2023) Dulu J. held:“...More importantly, denying the applicant herein the chance to ventilate their case would in my view amount to a violation of their right to fair hearing under Article 25 and 50 of the Constitution of Kenya, as it would mean condemning someone without being heard. In any event, in my view, an award ofcostsfor reopening the case would adequately compensate the respondent herein" 19.The I st Defendant / Applicant pleads to be heard. The reason that he prays to be heard is because he was not served. There is no proof of service. In the interest ofjustice and in the spirit of Article 159 (2) of the Constitution, we pray that the application herein be allowed. The respondent shall not suffer any prejudice if the application is allowed. 20.The Plaintiff/ Respondent in opposition to the application filed submissions dated 17th December, 2025 and submitted that the Plaint commencing the suit was filed on 8th July 2025 having been brought under Certificate of Urgency. That the court certified the Application urgent and directed the same to be served upon the Defendants. Thereafter, the Advocates on record duly served the Defendant/Applicant through its official email and the 2nd Defendant was served physically on 23rd July 2025.'Ihe respective Affidavit of Service was duly filed. 21.That the 1st Defendant/Applicant having been properly served, failed to enter appearance and/or file Replying Affidavit to the Application already allowed. On the other hand, the 2nd Defendant conceded to the Plaintiffs/Respondent Application. 22.That when the Parties appeared before the Honourable Judge on 17ff September 2025, the Honourable Court being satisfied with service, allowed the Application. It is therefore the Plaintiffs/Respondent's position that the orders herein were obtained regularly. 23.That it was not until the order was served upon the 1st Defendant/Applicant with view of compliance of the order that the Defendant/Applicant filed this instant Application seeking to set aside the exparte orders herein and stay execution of the same. 24.That on its part, the Defendant/Applicant refutes having been served with the pleadings and contends that the orders were obtained irregularly and/or illegally hence its quest for this Honourable Court to set aside the exparte Orders. 25.On the Law relating to setting aside orders the Respondent submitted that Order 10 Rule 11 of the civil Procedure Rules, 2010 relating to setting aside orders provides as follows:-“11.Where Judgment has been entered under this Order, the court may set aside or vary such Judgment and any consequential decree or order upon such terms as are just” 26.That the principles guiding this Court in determining whether the circumstances are just to set aside a default Judgment were set out in the locus classicus case of Shah V Mbogo (1967) EA 116 wherein Lord Harris J. observed as follows:-"...the principles governing the exercise of the court's discretion to set aside a judgment obtained exparte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or reasonable mistake or error but not to assist a party who has deliberately sought whether by evasion or otherwise, to obstruct or delay the cause of justice. 27.It was submitted that further this position was cited with approval by the Court of Appeal in Amayi Okumu Kasiaka & 2 Others -Vs- Moses Okvare Opari & Another {20' 3) eKLR, The learned Judges further observed that where regular Judgment has been entered, then the Defendants must demonstrate to the Honourable Court that the intended defence raises triable issues that are worthy of consideration by the Honourable Court. They stated as follows;In the Supreme Court Practice, 1976, Vol 1, it is stated as follows:“Regular Judgment. If the Judgment is regular then it is an (almost) inflexible rule that there must be an affidavit of merits; i.e. an affidavit stating facts showing a defence as (to) the merits (Farden -Vs- Richter (1989) 23 QBD 124) 'At any rate whether such an Application is not thus supported, it ought not to be granted except for some vec sufficient reason' Per Huddleston B. at 129 approving Hopton - Vs- Robertson (1984) reprinted 23 QBDp. 126 (n) and see Richardson —VS- Now-ell BTLR 445. 28.The Respondent submitted that the only issue for determination by this Court is whether the Application, Plaint and attendant documents were served upon the 1st Defendant/Applicant. 29.It was submitted that service upon the 1st Defendant/Applicant in this matter was proper as demonstrated in the Affidavit of Service sworn and dated 15d1 July 2025. 30.That in the said Affidavit, Counsel explained to the Court the manner in which service was effected in great detail. Specifically and deponed that he served the pleadings upon the 1st Defendant/Applicant electronically through the official email as indicated in the CR12 Form. 31.Further that in the Supporting Affidavit sworn on 6ff October 2025 in support of the Application, the 1st Defendant/Applicant Director merely denies ever being served with any process. He further loses focus through insinuations against Counsel for the Plaintiff/Respondent which we shall not belabor to respond to. 32.It was further submitted that the 1st Defendant/Applicant has not advanced any shred of evidence to prove that service was not effected upon them and has only offered mere denials. The court’s attention was drawn to the several Affidavits of service evidencing service upon the Defendant/Applicant who still failed to enter appearance. 33.It was also submitted that the 1st Defendant/Applicant has not disowned or disputed the email address used to effect service and had not sought for an opportunity to cross-examine Counsel to test the veracity of the contents of his Affidavits if any. The Plaintiff/ Respondent submitted that the instant Application is another attempt by the 1st Defendant/ Applicant to defeat the Plaintiffs/Respondent's claim and delay the course of justice. 34.The Respondent urged the court to exercise its discretionary powers in favour of the Plaintiff/Respondent as it is in the interest of justice that the Plaintiff is not denied the fruits of the orders which were obtained legally and regularly. 35.The court was urged to dismiss the Notice of Motion dated 6d1 October 2025 for lacks of merit. Analysis and Determination 36.Having considered the application, the response by the Plaintiff/ Respondent and respective submissions, the principal issues are:(a)Whether service of the application and summons was effected in accordance with Order 5 Rule 22B so as to render the ex parte order regular; and(b)If service was irregular, whether the ex parte order should be set aside (in whole or in part) and what consequential directions and orders should follow, including as to preservation of status quo and expedition of the substantive suit. 37.The applicable principles governing service of process are that service of process is fundamental to the right to a fair hearing and courts must be satisfied that service has been properly effected before permitting ex parte relief as provided by Order 5, Civil Procedure Rules and constitutional guarantees of fair hearing. 38.Order 5 Rule 22B permits service by electronic mail to a last confirmed and used email address. It contemplates objective proof of delivery — for example a delivery receipt, SMTP delivery confirmation or mailbox headers. A mere copy of a sent email without delivery confirmation is weak evidence of actual receipt. 39.Authorities caution against an advocate placing himself in the position of witness in respect of contested evidential facts in matters he conducts and where the issue of service is disputed the court must scrutinize such practice. 40.The court has a judicial discretion to set aside ex parte orders obtained in default where service was not properly effected or where justice requires; where a prior order is regular the Applicant would normally need to show a prima facie or triable defence. 42.On the material before the Court the Plaintiff produced affidavits asserting electronic service and annexed copies of sent emails and related correspondence. Those affidavits do not, however, include an electronic delivery receipt, SMTP headers or server logs conclusively demonstrating successful delivery to the Defendant’s mailbox. The 1st Defendant has sworn that it did not receive the emailed documents, that it only became aware of the ex parte order upon service of the order itself, and that the email address used may have been misspelt or not its operative address. 43.At least one affidavit of service was sworn by the Plaintiff’s advocate. The fact of an advocate swearing to contested service facts reduces the evidentiary weight of that affidavit and requires careful judicial scrutiny. 44.On proof of electronic delivery Order 5 Rule 22B requires reliable evidence of delivery where service is effected electronically. The annexed sent emails, absent delivery receipts or server header evidence, do not establish delivery to the Defendant’s inbox to the civil standard required in the face of an express denial of receipt. Consequently, the Plaintiff’s evidence as presently constituted is not sufficiently conclusive to preclude the Court from reassessing the matter. 45.On the issue of Advocate swearing affidavit of service, it is not in dispute that an advocate may, in limited circumstances, swear to facts within his direct knowledge. Where service is contested, however, an advocate’s affidavit on that issue — particularly where the same advocate is acting in the proceedings — attracts caution. The failure to produce independent process‑server evidence is a material shortcoming. 46.Concerning the merits and discretion to set aside orders, the court must balance the right to a fair hearing against the Plaintiff’s right to obtain urgent relief when legitimately necessary. The 1st Defendant has averred a plausible defence on the merits — distinct registration and business operations, and the absence of exclusive proprietary rights in a plain English word which, if supported, raises triable issues. In the exercise of judicial discretion and in order to prevent potential injustice arising from contested service, the Court finds it appropriate to afford the 1st Defendant an opportunity to be heard on the substantive suit. 47.For the reasons set out above, the Court makes the following orders:1.The ex parte interim injunction granted on 17 September 2025 is hereby set aside insofar as it restrains the 1st Defendant from using the domain name “Lifescope” pending the determination of the substantive claim, subject to the status‑quo directions being maintained.(a)The 1st Defendant, Lifescope Medical Centre Limited, shall be permitted to continue using its corporate name and operate its medical centre under the name “Lifescope Medical Centre Limited” and to continue using any domain names and business identifiers currently in its legitimate possession and control, provided that such use does not expressly represent that the 1st Defendant is operating as or is the same business as the Plaintiff (Lifescope Laboratories). The 1st Defendant shall not adopt trade presentation or branding that is likely to materially confuse or pass itself off as the Plaintiff’s laboratory services pending final determination.(b)The Plaintiff may continue to operate its laboratory services under its existing name and trade presentation.(c)Neither party shall remove, alter or destroy material documents or electronically stored evidence relevant to the dispute; each party is ordered to preserve all relevant records, emails, web hosting logs, domain registration information, server headers, SMTP logs and communications relating to the domain name(s) and name usage. 48.If either party alleges the other is breaching the status‑quo directions above, that party may apply on urgent notice, with supporting affidavit, to the Court for a variation or enforcement order. 49.The 1st Defendant is hereby ordered to access the substantive application (filed on 4 July 2025) and the Plaint from the CTS and shall file and serve its memorandum of appearance, statement of defence as well as witness statements and accompanying documentary exhibits and any affidavits in answer, including a detailed affidavit of merits, within 14 days. 50.The matter is to be set down for mention/directions on the first available date after filing of the 1st Defendant’s response. Thereafter the substantive application and the plaint shall be set down for hearing expeditiously. 51.Having regard to the competing failings and the importance of the right to be heard, the Court awards thrown away costs of Kshs. 20,000/= of the 1st Defendant’s Notice of Motion dated 6 October 2025 to the Plaintiff. The 1st Defendant shall pay the said costs within 30 days of today’s date. DATED, SIGNED AND DELIVERED AT MIGORI THIS 11th DAY OF JUNE, 2026.HON. ANNE ADWERA- ONG’INJOJUDGEIn the Presence of:Victor – Court Assistant