[2022] KEHC 12918 (KLR)

National Airways Corporation (PTY) LTD(PTY) Ltd v Aberdair Aviation Limited & another (Civil Case E140 of 2019) [2022] KEHC 12918 (KLR) (Commercial and Tax) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12918 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E140 of 2019

DAS Majanja, J

September 14, 2022

Between

National Airways Corporation(PTY) LTD (PTY) Ltd

Plaintiff

and

Aberdair Aviation Limited

1st Defendant

Adrian Wilcox

2nd Defendant

Ruling

1. The defendants have moved the court by an application dated June 16, 2021 seeking a raft of orders but primarily an order to set aside the ex-parte judgment and all consequential orders including the execution proceedings. Although the defendants have not invoked it, the application appears to fall under the provisions of order 10 rule 11 of theCivil Procedure Rules (“the Rules”). The application is supported by the 2nd defendant’s affidavit and further affidavit sworn on June 16, 2021 and July 14, 2021. It is opposed by the Plaintiff through the replying affidavit of its advocate, Gilbert Josiah Mungu, sworn on June 30, 2021. Both sides filed written submissions in support of their respective positions.

2. From the depositions and submissions, the issue for the court’s consideration is whether defendants were served with summons to enter appearance (“summons”) and whether, in the circumstances, the ex-parte judgment ought to be set aside.

3. The defendants claim that they were never served with summons and only came to know of the suit when the proclamation was served on the claim. They claim that the affidavit of service is misleading and perjurious. On their part, the plaintiffs submit that the summons were served in accordance with order 5 rule 15 of the Rules and submit that the there is a presumption of service and in the event there is doubt, then the defendants ought to call the process server for cross-examination in accordance with order 5 rule 16 of the Rules. It cites the case of Harun Miruka v Jared Otieno Abok andanother KSM HCCC No 191 of 1985 [1990] eKLR where adopted the following observation by Platt JA, in Shadrack Arap Baiywo v Bodi Bach Civil Appeal No 122 of 1986 (UR):There is a qualified presumption in favour of the process server recognised in MB Automobile v Kampala Bus Service [1966] EA 480 at p 484 as having been the view taken by the Indian courts in construing similar legislation. On Chitaley and Annaji Rao: The Code of Civil Procedure Vol II p 1670, the learned commentators say:“3. Presumption as to service – There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service.”

4. The evidence of service upon which the court relied to enter judgment against the defendants is to be found in the affidavit of service. At the material part, the affidavit of service of the process server, Nelson Dende Bulu, sworn on October 22, 2019, states as follows:(5)That on the June 27, 2019 I visited the same office at around 12. :45 where I found one Mr David Agesa who works with the 1st and 2nd defendants and after introducing myself and the purpose of my visit, he accepted service but he declined from signing copies but he informed me that he will give the same to the 1st and 2nd defendants.

5. The depositions as to service above should be juxtaposed against the requirements of service on a corporation set out in order 5 rule 3 of the Rules and on an individual set out in order 5 rule 8(1) of the Rules. These, provide, in part as follows:[order 5 rule 3] service on a corporation3. Subject to any other written law, where the suit is against a corporation, the summons may be served:a.On the secretary, director or other principal officer of the corporation; orb.If the process server is unable to find any of the officers of the corporation mentioned in rule 3(a) –i.by leaving it at the registered office of the corporation;ii.by sending it by prepaid registered post or on a licenced courier service provider approved by the court to the registered postal address of the corporation; oriii.if there is no registered office and no registered postal address of the corporation, by leaving it at the place where the corporation carries on business; or ……….[order 5, rule 8] service to be on defendant in person or on his agent. 8. (1)Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.

6. A cursory perusal of the affidavit of service does not demonstrate that the service was done in accordance with order 5 of the Rules aforesaid. As regards the 1st defendant, the service of summons was not effected on its director or principal officer. It does not disclose whether the said David Agesa is such a principal officer. as regards the 2nd defendant, it has not shown that David Agesa is his agent empowered to accept service on his behalf.

7. While I accept that where service is disputed, it is proper to call the process server for cross-examination, it must be established that the affidavit of service on its face demonstrates or shows proper service in accordance with the Rules. Since the plaintiff relies on the affidavit of service to obtain an ex-parte judgment, the affidavit must ex-facie and in the first instance, establish that service was done in a proper manner. The purpose of cross-examination, in my view, is not to repair defects in service disclosed by the affidavit of service but to resolve a dispute on service where the affidavit of service demonstrates that prove service was effected. I find and hold that based on the affidavit of service sworn by Nelson Dende Bulu, the defendants were not served with summons.

8. Order 10 rule 11 of the Rules empowers the court to set aside judgment in default of appearance or defence on such terms as are just. The unfettered jurisdiction of the court has been asserted in several decisions among them Patel v EA Cargo Handling Services Ltd [1974] EA 75 where the court held that:There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself or fetter wide discretion given to it by the rules, the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.

9. This discretion is intended to be exercised to avoid injustice or hardship and not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice. In exercising this discretion, the court is entitled to look at the entire circumstances of the case, the conduct of the parties, whether the defendant has a defence to the claim and any prejudice that may be occasioned to the plaintiff. I would add that where there is no service or the judgment is irregular, the court does not have discretion to set aside the judgment, it must set aside the judgment as a matter of right (see James Kanyita Nderitu and another v Marios Philotas Ghikas & Another MSA CA Civil Appeal No 6 of 2015 [2016] eKLR and Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148).

10. It is clear therefore the judgment must be set aside ex debito jusiticiaefor want of service of summons. It follows then that all subsequent steps including execution must be set aside. I therefore allow the application dated June 16, 2021 on the following terms:a.The default judgment entered against the defendants and all consequential orders and proceedings herein be and are hereby set aside.b.The defendants shall file and serve their statement of defence within 14 days.c.The plaintiff shall bear the costs of the application.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. D. S. MAJANJAJUDGE**Court Assistant: Mr M. Onyango*Mungu, Kimetto and Company Advocates for the Plaintiff.CM Advocates LLP Company Advocates for the Defendants.