[2001] KEHC 169 (KLR)
The court found that although service on the first defendant was contested, it was effected at the company premises and thus constituted proper service under Order V Rule 2. However, the court disagreed with the plaintiff's argument that no formal proof was required, holding that a liquidated claim is still...
Source-derived case information.
- Citation
- [2001] KEHC 169 (KLR)
- Parties
- Plaintiff: Muthaiga Road Trust Company Ltd; Defendant: Five Continents Stationers Ltd; Defendant: Deepan Shah; Defendant: Pankaj Thaker
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1707 of ??
- Procedural Posture
- Chamber Summons Application / Application to Set Aside Interlocutory Judgment
- Outcome
- application granted; ex parte judgment set aside
- Legal Topics
- Service of Summons, Interlocutory Judgment, Setting Aside Judgment, Formal Proof, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthaiga Road Trust Company Ltd
Plaintiff
Five Continents Stationers Ltd
Defendant
Deepan Shah
Defendant
Pankaj Thaker
Defendant
Procedural Posture
Chamber Summons Application / Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether there was proper service of summons on the defendants.
- 2 Whether the interlocutory judgment entered in default of appearance should be set aside.
- 3 Whether the matter required formal proof under the Civil Procedure Rules.
Ratio Decidendi
The court found that although service on the first defendant was contested, it was effected at the company premises and thus constituted proper service under Order V Rule 2. However, the court disagreed with the plaintiff's argument that no formal proof was required, holding that a liquidated claim is still pecuniary and formal proof was necessary under Order IXA Rule 5. The court was satisfied that the defendants had a defence on the merits raising triable issues. Consequently, the ex parte interlocutory judgment entered in default of appearance was set aside under Order IXA Rule 10, and the defendants' application was granted as prayed.
Court Disposition
application granted; ex parte judgment set aside
Orders
- The ex parte judgment of 22nd December, 2000 is set aside.
- The defendants' application is granted as prayed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI MILIMANI LAW COURTS
CIVIL CASE NO. 1707 OF 2000
MUTHAIGA ROAD TRUST COMPANY LTD……………PLAINTIFF
V E R S U S
FIVE CONTINENTS STATIONERS LTD…………...1ST DEFENDANT
DEEPAN SHAH………………………………………...2ND DEFENDANT
PANKAJ THAKER…………………………………….3RD DEFENDANT
R U L I N G
This Chamber Summons application dated 22nd June, 2001 is brought under Order IXA Rules 5, 6 and 10; Order XXI of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Defendants/Applicants pray for an order setting aside the interlocutory judgment entered on 22nd December, 2000 in default of appearance; that there be a stay of execution and the annexed defence be deemed as filed. That application is based mainly on the grounds that there was improper service of summons (if at all) on the Defendants and the interlocutory judgment should not have been executed without going for formal proof. The Plaintiff/Respondent filed its Replying Affidavit on 4th July, 2001 and the parties were heard on 10th July, 2001. Mr. Mussilli, Counsel for the Applicants/Defendants, contended that there was no service of summons upon the Defendants and that the process server, Jackstone Oyia Owidhi did not tell this court how he came to know one Mr.Sharaj as a director of the first defendant, or who introduced him as such. He further argued that service was on the wrong Company, that is, Five Continents Travels instead of Stationers Limited, and that there was no admission for the amount claimed. He therefore concludes that there are triable issues requiring the interlocutory judgment to be set aside.
Mr. Ohaga, on the other hand, argued that the suit related to a liquidated claim and not “pecuniary damages.” There was therefore no need for formal proof. He also submitted that there is no defence to the Plaintiff’s claim and no purpose will be served by setting aside the interlocutory judgment. He referred to the case ofPatel v. E.A. Cargo Handling Services Ltd [1974] E.A.C.A.75 on this point. It is clear from the court records that Jackstone Oyia Owidhi effected service on the first and second defendants per his affidavits of service dated 14th November, 2000. There is no evidence of service on the third defendant. Although service on the first defendant is contested as having being on a non-officer (Mr. Sharaj), I do not think it has a serious effect as the summons were left in the Company’s premises which is proper service under Order V Rule 2. Mr. Ohaga’s argument that the matter did not require formal proof as the claim is liquidated and not pecuniary cannot, with respect, stand. The word “pecuniary” denotes a monetary relationship. A liquidated sum is pecuniary and cannot be otherwise. The matter should have gone for formal proof under Order IXA Rule 5. I am satisfied that there is a defence on the merits of the case raising triable issues and hereby set aside the ex parte judgment of 22nd December, 2000 under Order IXA Rule 10. The Applicants’ application is therefore granted as prayed. The costs shall be in the cause.
DATED and DELIVERED at NAIROBI this 31st day of July, 2001.
ALNASHIR VISRAM
JUDGE