[2001] KEHC 511 (KLR)
The court found that there was no evidence of service of summons upon the 1st defendant, as the affidavit of service did not state that he had been served. Therefore, the default judgment against him was irregular and was set aside. In contrast, the court held that the 2nd defendant was properly served through its...
Source-derived case information.
- Citation
- [2001] KEHC 511 (KLR)
- Parties
- Plaintiff: Paul O. Ogada; Defendant: Kassim Owango; Defendant: Milligan & Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 394 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment
- Outcome
- Application by 1st defendant allowed; application by 2nd defendant dismissed with costs.
- Judges
- T Mbaluto
- Legal Topics
- Default Judgment, Service of Process, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul O. Ogada
Plaintiff
Kassim Owango
Defendant
Milligan & Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the default judgment against the 1st defendant was regular in the absence of evidence of service of summons.
- 2 Whether the default judgment against the 2nd defendant should be set aside given the affidavit of service and the authority of the person served.
Ratio Decidendi
The court found that there was no evidence of service of summons upon the 1st defendant, as the affidavit of service did not state that he had been served. Therefore, the default judgment against him was irregular and was set aside. In contrast, the court held that the 2nd defendant was properly served through its manager, Mr. Khasoa, who had authority to accept service. The 2nd defendant's failure to enter appearance and defence was not satisfactorily explained, and thus the application to set aside the default judgment against the 2nd defendant was dismissed with costs.
Court Disposition
Application by 1st defendant allowed; application by 2nd defendant dismissed with costs.
Orders
- Default judgment against 1st defendant set aside.
- 1st defendant's defence deemed duly filed upon payment of requisite court fees.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 394 OF 2001
PAUL O. OGADA …………………………………….…….. PLAINTIFF
VERSUS
KASSIM OWANGO ………………………………… 1ST DEFENDANT
MILLIGAN & COMPANY LIMITED …………….. 2ND DEFENDANT
RULING
The defendants in this suit have lodged this application to set aside a judgment entered against them on 18. 4.2001 in default of appearance and defence. The basis of the application is the claim that neither of them was served with summons to enter appearance.
Regarding the 1st defendant Kassim Owango, the affidavit of service on the basis of which the default judgment was entered does not state that he had been served and consequently no judgment should have been entered against him. Accordingly, in so far as it relates to him, the request for judgment was irregular and the judgment entered against him should not therefore be allowed to stand.
The position is however different as far as the 2nd defendant is concerned. The affidavit of service sworn by the process server reveals that summons to enter appearance together with a copy of the plaint were served at the 2nd business premises at Prudential Building, Wabera Street, Nairobi upon Mr. Khasoa, a manager of the 2nd defendant who duly informed the process server that he had authority from the 2nd defendant to accept service and who signed the original documents in acknowledgement of the service.Although Mr. Kassim Owango, in his affidavit in support of this application, claims that Mr. Khasoa is an employee of a sister company known as Miligan Properties Limited, he does not deny that the said Khasoa, as such manager of a sister company, had as he claimed authority to accept service on behalf of the 2nd defendant. Given that position, what the process server states regarding Mr. Khasoa stands unchallenged. In my view therefore, that was good service of summons to enter appearance upon the 2nd defendant. The implication of that finding is that the 2nd defendant’s failure to enter appearance and defence in time has not been satisfactorily explained.
For the above reasons the application by the 1st defendant succeeds and the default judgment entered against him set aside. His defence will be deemed as duly filed upon payment of the requisite court fees. As regards the 2nd defendant, the application is dismissed with costs.
Dated at Nairobi this 26th day of October, 2001.
T. MBALUTO
JUDGE