[2025] KEHC 16730 (KLR)
The court found that, although the process server's affidavit was detailed and appeared credible, the defendant had raised a sworn dispute regarding service and requested cross-examination of the process server. In the interests of justice and to avoid potential injustice, the court held that the process server...
Source-derived case information.
- Citation
- [2025] KEHC 16730 (KLR)
- Parties
- Plaintiff: Stanbic Bank Kenya Limited; Defendant: Mohamed Farah Bardad
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E255 of 2022
- Procedural Posture
- Commercial Case / Ruling on Application to Set Aside Interlocutory Judgment and for Cross Examination of Process Server
- Outcome
- Application partially allowed; process server to be summoned for cross-examination; further orders deferred.
- Judges
- A Mabeya
- Legal Topics
- Service of Process, Setting Aside Judgment, Affidavit Evidence, Cross Examination, Hire Purchase Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanbic Bank Kenya Limited
Plaintiff
Mohamed Farah Bardad
Defendant
Procedural Posture
Commercial Case / Ruling on Application to Set Aside Interlocutory Judgment and for Cross Examination of Process Server
Legal Issues
- 1 Whether the process server should be called for cross-examination on the affidavit of service.
- 2 Whether the interlocutory judgment should be set aside based on disputed service of process.
Ratio Decidendi
The court found that, although the process server's affidavit was detailed and appeared credible, the defendant had raised a sworn dispute regarding service and requested cross-examination of the process server. In the interests of justice and to avoid potential injustice, the court held that the process server should be summoned for cross-examination on his affidavit. Only after such cross-examination can the court properly determine whether the interlocutory judgment should stand or be set aside. The court therefore granted the application to the extent of summoning the process server for cross-examination, deferring the determination of the remaining prayers until after the...
Court Disposition
Application partially allowed; process server to be summoned for cross-examination; further orders deferred.
Orders
- Prayer no.3 of the Motion is granted: the process server shall attend court for cross-examination on his affidavit of service on a date to be fixed by the court.
- Determination of the remaining prayers in the Motion is deferred until after cross-examination.
Full Case Text
Judgment text and source record
32 paragraphs
Stanbic Bank Kenya Limited v Bardad (Commercial Case E255 of 2022) [2025] KEHC 16730 (KLR) (Commercial and Tax) (6 February 2025) (Ruling)
Neutral citation: [2025] KEHC 16730 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Commercial Case E255 of 2022
A Mabeya, J
February 6, 2025
Between
Stanbic Bank Kenya Limited
Plaintiff
and
Mohamed Farah Bardad
Defendant
Ruling
1. Before Court is the application dated 9/3/3034. The same is brought under section 3, 3A and 63(i) of the Civil Procedure Act, Order 5 rule 16, Order 10 rule 11, Order 40 rule 1 of the Civil Procedure Rules. It seeks for the cross examination of MR. PAUL LUKENDO MAFURA on the contents of the affidavits he swore on 2/6/2023 and 27/7/2022, respectively. That the ex-parte interlocutory judgment herein be set aside and the defendant be granted leave to defend the suit.
2. The application was supported by the grounds on the face of the Motion and the affidavit of MOHAMED FARAH BARDAD sworn on 9/3/2024. He deposed that he was made aware of the matter when he was informed that there was a warrant of arrest issued by the Court.
3. He contended that Paul Lukendo had made a misleading affidavit where he had averred that he was in Mandera. He confirmed that he had left Daua Intergrated School on 8/2/2022. That he was released from that School on 1/3/2022 following his early retirement. He states that he was not familiar with Mr. Hassan Juma who is alleged to have identified him to the process server and therefore the deponed information was false.
4. He stated that the draft defence raised triable issues as the interest charged was excessive and performance of the hire purchase contract was frustrated by hostile security situation in Northern Kenya. That the demands were sent to the postal address he had provided however he could not access it and the plaintiff ought to have used his phone number to inform him of the notices.
5. The application was opposed by the respondent vide a replying affidavit sworn by AMOS MUGAMBI on 8/4/2024. He deposed that the defendant had been personally served with the summons to enter appearance as well as the pleadings on 22/7/2022. That despite the service, the defendant failed to enter appearance or file a defence in time or at all.
6. That the defendant was found within the Dua Intergrated School premises where service was effected on him. That the application was brought as an afterthought after execution proceedings were commenced against the defendant. That in any event, there was inordinate delay in filing the application and that the draft statement of defence was not sufficient to answer the plaintiff’s claim.
7. I have considered the application, the response thereto and the submissions on record. There are two issues for determination; whether the process server should be called for cross-examination and consequently whether the interlocutory judgment should be set aside.
8. I propose to first deal with the first issue. There is no dispute that there is on record an affidavit of service of the process server on whose strength the interlocutory judgment was entered. The defendant has disputed the contents thereof and wishes to cross-examine the deponent thereof.
9. The general rule is that if the averments in an affidavit of service are not contradicted, rarely will an interlocutory judgment is to be set aside. The service will always be considered to have been proper. However, where a party disputes service and calls for an opportunity to test the averments in an affidavit of service, that in my view is the best route to establish whether an interlocutory judgment should stand or not.
10. In the present case, the process server stated that he travelled to Mandera on 19/7/2022. He took 3 days to reach Mandera. He went to Daua Intergrated School and the defendant came and effected service of process upon him at that school on 22/7/2022 at 3;00pm.
11. On the other hand, the defendant has denied being in that School. He also denies ever knowing the person who allegedly pointed him out to the process server for service.
12. In my view, for the interests of justice, the moment the defendant contested service and requested for the cross-examination no the process server, the plaintiff should have willingly offered him for such cross-examination since there was nothing was being hidden.
13. I have personally seen the detailed affidavit of service by the process server. It is too detailed to be doubted. But there is also the defendant’s contention on oath. If I proceed and consider the application on merit without hearing the process server, an injustice may be committed.
14. I therefore think that there is merit in summoning the process server for cross-examination on his affidavit.
15. Accordingly, I grant prayer no.3 of the Motion. He shall attend Court on the day and time to be fixed by the Court. After cross-examination, the Court will then consider the rest of the prayers in that Motion.
It is so ordered.
SIGNED AT NAIROBI THIS 3RD DAY OF FEBRUARY, 2025. A. MABEYA, FCI ARBJUDGEDATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF FEBRUARY, 2025. F. GIKONYOJUDGE