1. The 2nd & 3rd defendants/applicants filed a Notice of Motion application dated 6th October, 2023 pursuant to the provisions of Order 10 Rule 1 & Order 51 of the Civil Procedure Rules, 2010, Sections 1A, 1B & 3A of the Civil Procedure Act, and all other enabling provisions of the law. The applicants pray for orders for setting aside of the ex parte judgment dated 24th September, 2019 and all consequential orders, and for leave to defend the suit filed against them.
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on the same day by Richard Mwongela Ndubai, the 2nd defendant herein. He averred that the ex parte judgment is unlawful since the applicants were not served with Summons to enter appearance and pleadings for the suit. He alleged that at the time the plaintiff claims that they were served, he was employed and was in Somalia, whereas the 3rd defendant was in Tanzania where she is married. He averred that they could not access any correspondence until they travelled back to Kenya, which they were not able to do for a long time due to the nature of their businesses abroad, and challenges of the Covid-19 Pandemic.
3. In addition, he averred that the 4th defendant could not inform them of the existence of the suit since their relationship had deteriorated, and the 1st defendant had since been liquidated. He referred to Order 10 Rule 11 of the Civil Procedure Rules, 2010 and deposed that this Court has the jurisdiction to set aside the ex parte judgment entered them, and grant leave to the applicants to defend the suit. He stated that upon learning of the existence of this suit, they moved this Court promptly seeking to set aside the ex parte judgment.
4. In opposition to application, the plaintiff/respondent filed a replying affidavit sworn on 19th October, 2023 by Egidia Mecha, a Recoveries Officer at SBM Bank (K) Ltd, the successor of the plaintiff bank. He deposed that the plaintiff filed a suit on 13th July, 2018, seeking recovery of outstanding loans from the 1st defendant, which were guaranteed by the 2nd, 3rd and 4th defendants. That despite obtaining signed Summons on 17th July, 2018, they could not physically serve the defendants as they could not be located, which led the plaintiff to seek leave of the Court to serve the said Summons via the defendants\' last known registered addresses provided during the loan application. Mr. Mecha averred that despite service, the 1st, 2nd and 3rd defendants failed to enter appearance within the stipulated timelines, and the plaintiff\'s Counsel requested for judgment on 29th August, 2019, leading to entry of an interlocutory judgment in favor of the plaintiff against the 1st, 2nd and 3rd defendants on 24th September, 2019.
5. Mr. Mecha stated that on 2nd March, 2020, the 1st, 2nd and 3rd defendants were served with a Notice of entry of judgment via registered mail. That thereafter, the plaintiff\'s Counsel applied for the execution of the decree which resulted to the issuance of a Notice to Show Cause dated 19th August, 2021 to the 1st, 2nd & 3rd defendants. He noted that the Notice to Show Cause has been extended multiple times since the plaintiff could not trace the 1st, 2nd & 3rd defendants. He argued that the claim that the 2nd & 3rd defendants were not in Kenya is unsubstantiated. He clarified that the 2nd, 3rd & 4th defendants were sued as guarantors of the 1st defendant as they had executed a deed of guarantee and indemnity in favour of the 1st defendant.
6. Mr. Mecha contended that the 2nd & 3rd defendants’ claim of providing sufficient security for the loan is false, as the loan to the 1st defendant was unsecured. He explained that the title documents given to the bank belonged to the 2nd, 3rd & 4th defendants’ deceased father, and since a charge was never registered, the titles are held under simple deposit.
7. He stated that although a debenture was registered in favour of the plaintiff, the assets could not be liquidated because they were auctioned by Transnational Bank in April 2015 under a fixed debenture that had already crystallized.
8. He expressed the view that there has been inordinate delay in filing the instant application since it was filed four (4) years after the interlocutory judgment was entered. Mr. Mecha contended that no triable issues have been raised by the 2nd & 3rd defendants to justify the setting aside of the interlocutory judgment. He urged this Court to award the plaintiff Kshs.200,000/= thrown away costs in the event it is inclined to grant the orders sought, since the plaintiff\'s Advocates were at the final stages of execution.
9. In a rejoinder, the 2nd & 3rd defendants filed a further affidavit sworn on 25th November, 2023 by Meiling Christine Mwendwa Ndubai, the 3rd defendant herein. She claimed that she was neither a Director of the 1st defendant nor a guarantor of the loan advanced to the 1st defendant by the plaintiff.
10. Alongside a Notice to Cross-Examine the Process Server, the 2nd & 3rd defendants, filed a further affidavit. On 19th December, 2023 this Court gave directions for cross-examination of the Process Server by the name Catherine Maria Mvula on her affidavit sworn on 5th March, 2019. During cross- examination, she stated that she served the 3rd & 4th defendants with Summons to enter appearance dated 17th July, 2018 by registered mail on 16th July, 2019, which mail could only have been received in two to three days after being sent. She further testified that she served them via their Kenyan postal addresses despite the fact that the 2nd & 3rd defendants were residing out of Kenya at the time. She stated that the said Summons were addressed to the 2nd & 3rd defendants and confirmed that for letters sent by registered post, it is only the addressee of the letter who can receive it.
11. In re-examination, she stated that she effected service of the said Summons by registered post since the plaintiff had been granted leave by the Court to do so. She further stated that she did a proper affidavit of service sworn on 28th August, 2019 and an affidavit of non-service sworn on 5th March, 2019.
12. After cross-examination of the Process Server, the plaintiff filed a supplementary affidavit sworn on 19th February, 2024 by Egidia Mecha, a Recoveries Officer at SBM Bank (K) Ltd, the successor of the plaintiff bank. He stated that the allegations that the 2nd & 3rd defendants were served with expired Summons is untrue since the Summons served were issued on 17th July, 2018 and served upon the 2nd & 3rd defendants via registered post on 16th July, 2019.
13. The application herein was canvassed by way of written submissions. The 2nd & 3rd defendants’ submissions were filed on 11th December, 2023 and 20th February, 2024 by the law firm of Karauka & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Oundo, Muriuki & Company Advocates on 5th December, 2023.
14. Mr. Karauka, learned Counsel for the 2nd & 3rd defendants relied on the case of Ali Bin Khamis v Salim Bin Khamis Kirobe & others [1956] 1 EA 195 and the case of James Kanyiita Nderitu & another v Marics Philotas Ghikas & another [2016] eKLR, and submitted that the orders sought herein ought to be granted since there was no proper service of Summons to enter appearance upon the 2nd & 3rd defendants. He cited the case of David Kiptanui Yego & 134 others v Benjamin Rono & 3 others [2021] eKLR and stated that the 2nd & 3rd defendants’ draft statement of defence raises serious triable and legal issues to warrant this Court to exercise its discretion in their favour, by granting them the orders sought herein. Counsel relied on the provisions of Order 5 Rule 2 of the Civil Procedure Rules, 2010 and asserted that by the time the 2nd & 3rd defendants were served with Summons to enter appearance, the said Summons had expired and the plaintiff had not sought extension of the same before service.
15. Mrs. Wainaina, learned Counsel for the plaintiff submitted that the 2nd & 3rd defendants were properly served with Summons to enter appearance, and the pleadings in the suit filed against them hence the ex parte judgment entered was regular. She relied on the case of National Bank (K) Limited v Mary S. Ndeto & another [2002] eKLR, and the provisions of Order 5 Rule 17, Order 7 Rule 1 & Order 10 Rule 4(2) of the Civil Procedure Rules, 2010 to buttress her submissions. She further submitted that despite the fact that the 3rd defendant tendered in evidence in support of the allegation that she was in Tanzania at the time the Summons to enter appearance were served by the plaintiff, the documents adduced by the 2nd & 3rd defendants show that the 3rd defendant visited Kenya in many instances.
16. Counsel stated that the 3rd defendant’s passport shows that she entered Kenya on 19th December, 2018 and exited on 22nd January, 2019, entered Kenya on 25th July, 2019 and exited on 28th July, 2019, and entered Kenya on 19th October, 2022 and exited on 31st October, 2022. Counsel contended that, it was not true that the 2nd & 3rd defendants were not in Kenya. In support of its prayer for thrown away costs, Counsel relied on the decisions in Kenya Alliance Insurance Co. Limited v Eunice Nyaboke Nyaribari & NIC Bank Limited [2021] eKLR and Elijah Adul v Patrick Lang’at & another [2020] eKLR. She submitted that the 2nd & 3rd defendants had not made out a case to warrant being granted the orders sought, thus the application herein ought to be dismissed.
ANALYSIS AND DETERMINATION.
17. Upon consideration of the instant application, the grounds on the face of it, the affidavits filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties, the issue that arises for determination is whether the ex parte judgement should be set aside and leave be granted to the 2nd & 3rd defendants to defend the suit.
18. Setting aside of ex parte judgments is provided for under Order 12 Rule 7 of the Civil Procedure Rules, 2010 which states as follows-
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
19. In the case Mohamed & another v Shoka [1990] KLR 463, the Court set out the factors that should be considered when dealing with applications for setting aside ex parte judgment to include -
i) Whether there is a regular judgment;
ii) Whether there is a defence on merit;
iii) Whether there is a reasonable explanation for any delay;
iv) Whether there would be any prejudice.
20. The issue of regular judgments was addressed in the case Mwala v Kenya Bureau of Standards EA [2001] 1 EA 148, where the court stated -
…to all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.
21. The suit between the parties herein was filed on 13th July, 2018 and Summons to enter appearance issued on 17th July, 2018. From the record, it is clear that the 2nd & 3rd defendants could not be traced for purposes of personal, physical service of the said Summons. The Court on 11th July, 2019 granted the plaintiff leave to serve the said Summons by registered post to their last known addresses. On 16th July, 2019, the said Summons were sent to the 2nd & 3rd defendants vide their postal addresses provided to the plaintiff at the time of loan application.
22. Subsequently, the plaintiff made an application for request of judgment on 28th August, 2019 on the strength of the affidavit of service sworn by Ms. Mvula on 28th August, 2019 where she averred that she served the 2nd & 3rd defendants with summons to enter appearance via registered post to their last known postal addresses. As proof of service, Ms. Mvula annexed to her supporting affidavit a payment receipt issued to her by the Postal Corporation of Kenya. Upon perusal of the record, it is evident that interlocutory judgment was entered against the 2nd & 3rd defendants on 24th September, 2019.
23. The 2nd & 3rd defendants contend that at the time of the said service, they were not in the country, the 2nd defendant was in Somalia where he works while the 3rd defendant was in Tanzania where she is married and runs her business. For this reason, they could not be expected to have had access to their postal addresses to receive the Summons to enter appearance issued in this case. From the record, there is no evidence adduced by the 2nd & 3rd defendants of the 2nd defendant’s absence from Kenya at the time of service of Summons or otherwise, therefore this Court is not persuaded that the 2nd defendant was unable to access his postal address to receive the Summons sent to him by the plaintiff.
24. The 3rd defendant on the other hand has demonstrated that she has been in and out of the country on several occasions in the year 2018 and 2019. For instance, she entered Kenya on 19th December, 2018 and exited on 22nd January, 2019, and entered Kenya on 25th July, 2022 and exited on 28th July, 2022. It is however impossible to ascertain from her passport whether or not she was in the Country at the time of service of the Summons to enter appearance. The above notwithstanding, the plaintiff had leave of Court to serve the said Summons upon the 1st, 2nd & 3rd defendants via registered post to their last known addresses. Therefore, whether or not the said defendants were in the Country, the plaintiff was deemed to have effected service upon sending the Summons to the 1st, 2nd, & 3rd defendants last known postal addresses.
25. The 1st, 2nd & 3rd defendants on the other hand had a duty to ensure that their postal boxes were regularly checked so as to ensure that anything sent to them via their postal addresses were brought to their attention in good time for them to respond accordingly.
26. It was submitted by the 2nd & 3rd defendants’ Counsel that the above notwithstanding, the said Summons had expired by the time they were served, and since it takes two to three days for a document/letter sent by registered post to reach its destination, service can only be deemed to have been effected after the Summons had been delivered to the recipient’s postal box.
27. Section 3(5) of the Interpretation and General Provisions Act provides that -
“ Where any written law authorizes or requires a document to be served by post, whether the expression “serve” or “give” or “send” or any other expression is used, then, unless a contrary intention appears, the service shall be deemed to be effected by properly addressing to the last known postal address of the person to be served, prepaying and posting, by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post.”
28. During cross-examination of Ms. Mvula, the Court Licensed Process Server who effected service of the Summons in issue, she stated that she served the 2nd & 3rd defendants with Summons via registered post, thus the said Summons could only be received after two to three days. Therefore, if it took three days for the Summons to reach the 2nd & 3rd defendants, they would have received the Summons on 19th July, 2019. Pursuant to the provisions of Order 5 Rule 2(1) of the Civil Procedure Rules, 2010, service of Summons to enter appearance shall be valid in the first instance for twelve (12) months beginning with the date of its issuance.
29. In this case, the Summons to enter appearance in question were issued on 17th July, 2018, which means that the said Summons were valid up to 16th July, 2019. Evidence has been led to the effect that the Summons issued were sent to the 2nd & 3rd defendants via registered post on 16th July, 2019, a day before they expired. From the foregoing, it is clear that the said Summons were expected to be delivered to the 2nd & 3rd defendants postal boxes either on 18th or 19th July, 2019. This means that by the time of receipt of the said Summons, they were invalid thus of no consequence since they had expired.
30. In light of the foregoing, it is my finding that there was no proper service of Summons to enter appearance on the 2nd & 3rd defendants, therefore the ex parte judgment entered in favour of the plaintiff against the 2nd and 3rd defendants was irregular and is for setting aside ex debito justitiae.
31. The upshot is that the application herein is merited. It is allowed as prayed. The 2nd and 3rd defendants are granted leave to file and serve their statement(s) of defence within thirty (30) days from today. Costs shall be in the cause.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 20th day of September, 2024. Ruling delivered through Microsoft Teams online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Oyando h/b for Mr. Fundi for the plaintiff
Ms Atukunda h/b for Mr. Kurauka & Co. Advocates for the 2nd & 3rd defendants
Mr. B. Wokabi – Court Assistant.
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on the same day by Richard Mwongela Ndubai, the 2nd defendant herein. He averred that the ex parte judgment is unlawful since the applicants were not served with Summons to enter appearance and pleadings for the suit. He alleged that at the time the plaintiff claims that they were served, he was employed and was in Somalia, whereas the 3rd defendant was in Tanzania where she is married. He averred that they could not access any correspondence until they travelled back to Kenya, which they were not able to do for a long time due to the nature of their businesses abroad, and challenges of the Covid-19 Pandemic.
3. In addition, he averred that the 4th defendant could not inform them of the existence of the suit since their relationship had deteriorated, and the 1st defendant had since been liquidated. He referred to Order 10 Rule 11 of the Civil Procedure Rules, 2010 and deposed that this Court has the jurisdiction to set aside the ex parte judgment entered them, and grant leave to the applicants to defend the suit. He stated that upon learning of the existence of this suit, they moved this Court promptly seeking to set aside the ex parte judgment.
4. In opposition to application, the plaintiff/respondent filed a replying affidavit sworn on 19th October, 2023 by Egidia Mecha, a Recoveries Officer at SBM Bank (K) Ltd, the successor of the plaintiff bank. He deposed that the plaintiff filed a suit on 13th July, 2018, seeking recovery of outstanding loans from the 1st defendant, which were guaranteed by the 2nd, 3rd and 4th defendants. That despite obtaining signed Summons on 17th July, 2018, they could not physically serve the defendants as they could not be located, which led the plaintiff to seek leave of the Court to serve the said Summons via the defendants\' last known registered addresses provided during the loan application. Mr. Mecha averred that despite service, the 1st, 2nd and 3rd defendants failed to enter appearance within the stipulated timelines, and the plaintiff\'s Counsel requested for judgment on 29th August, 2019, leading to entry of an interlocutory judgment in favor of the plaintiff against the 1st, 2nd and 3rd defendants on 24th September, 2019.
5. Mr. Mecha stated that on 2nd March, 2020, the 1st, 2nd and 3rd defendants were served with a Notice of entry of judgment via registered mail. That thereafter, the plaintiff\'s Counsel applied for the execution of the decree which resulted to the issuance of a Notice to Show Cause dated 19th August, 2021 to the 1st, 2nd & 3rd defendants. He noted that the Notice to Show Cause has been extended multiple times since the plaintiff could not trace the 1st, 2nd & 3rd defendants. He argued that the claim that the 2nd & 3rd defendants were not in Kenya is unsubstantiated. He clarified that the 2nd, 3rd & 4th defendants were sued as guarantors of the 1st defendant as they had executed a deed of guarantee and indemnity in favour of the 1st defendant.
6. Mr. Mecha contended that the 2nd & 3rd defendants’ claim of providing sufficient security for the loan is false, as the loan to the 1st defendant was unsecured. He explained that the title documents given to the bank belonged to the 2nd, 3rd & 4th defendants’ deceased father, and since a charge was never registered, the titles are held under simple deposit.
7. He stated that although a debenture was registered in favour of the plaintiff, the assets could not be liquidated because they were auctioned by Transnational Bank in April 2015 under a fixed debenture that had already crystallized.
8. He expressed the view that there has been inordinate delay in filing the instant application since it was filed four (4) years after the interlocutory judgment was entered. Mr. Mecha contended that no triable issues have been raised by the 2nd & 3rd defendants to justify the setting aside of the interlocutory judgment. He urged this Court to award the plaintiff Kshs.200,000/= thrown away costs in the event it is inclined to grant the orders sought, since the plaintiff\'s Advocates were at the final stages of execution.
9. In a rejoinder, the 2nd & 3rd defendants filed a further affidavit sworn on 25th November, 2023 by Meiling Christine Mwendwa Ndubai, the 3rd defendant herein. She claimed that she was neither a Director of the 1st defendant nor a guarantor of the loan advanced to the 1st defendant by the plaintiff.
10. Alongside a Notice to Cross-Examine the Process Server, the 2nd & 3rd defendants, filed a further affidavit. On 19th December, 2023 this Court gave directions for cross-examination of the Process Server by the name Catherine Maria Mvula on her affidavit sworn on 5th March, 2019. During cross- examination, she stated that she served the 3rd & 4th defendants with Summons to enter appearance dated 17th July, 2018 by registered mail on 16th July, 2019, which mail could only have been received in two to three days after being sent. She further testified that she served them via their Kenyan postal addresses despite the fact that the 2nd & 3rd defendants were residing out of Kenya at the time. She stated that the said Summons were addressed to the 2nd & 3rd defendants and confirmed that for letters sent by registered post, it is only the addressee of the letter who can receive it.
11. In re-examination, she stated that she effected service of the said Summons by registered post since the plaintiff had been granted leave by the Court to do so. She further stated that she did a proper affidavit of service sworn on 28th August, 2019 and an affidavit of non-service sworn on 5th March, 2019.
12. After cross-examination of the Process Server, the plaintiff filed a supplementary affidavit sworn on 19th February, 2024 by Egidia Mecha, a Recoveries Officer at SBM Bank (K) Ltd, the successor of the plaintiff bank. He stated that the allegations that the 2nd & 3rd defendants were served with expired Summons is untrue since the Summons served were issued on 17th July, 2018 and served upon the 2nd & 3rd defendants via registered post on 16th July, 2019.
13. The application herein was canvassed by way of written submissions. The 2nd & 3rd defendants’ submissions were filed on 11th December, 2023 and 20th February, 2024 by the law firm of Karauka & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Oundo, Muriuki & Company Advocates on 5th December, 2023.
14. Mr. Karauka, learned Counsel for the 2nd & 3rd defendants relied on the case of Ali Bin Khamis v Salim Bin Khamis Kirobe & others [1956] 1 EA 195 and the case of James Kanyiita Nderitu & another v Marics Philotas Ghikas & another [2016] eKLR, and submitted that the orders sought herein ought to be granted since there was no proper service of Summons to enter appearance upon the 2nd & 3rd defendants. He cited the case of David Kiptanui Yego & 134 others v Benjamin Rono & 3 others [2021] eKLR and stated that the 2nd & 3rd defendants’ draft statement of defence raises serious triable and legal issues to warrant this Court to exercise its discretion in their favour, by granting them the orders sought herein. Counsel relied on the provisions of Order 5 Rule 2 of the Civil Procedure Rules, 2010 and asserted that by the time the 2nd & 3rd defendants were served with Summons to enter appearance, the said Summons had expired and the plaintiff had not sought extension of the same before service.
15. Mrs. Wainaina, learned Counsel for the plaintiff submitted that the 2nd & 3rd defendants were properly served with Summons to enter appearance, and the pleadings in the suit filed against them hence the ex parte judgment entered was regular. She relied on the case of National Bank (K) Limited v Mary S. Ndeto & another [2002] eKLR, and the provisions of Order 5 Rule 17, Order 7 Rule 1 & Order 10 Rule 4(2) of the Civil Procedure Rules, 2010 to buttress her submissions. She further submitted that despite the fact that the 3rd defendant tendered in evidence in support of the allegation that she was in Tanzania at the time the Summons to enter appearance were served by the plaintiff, the documents adduced by the 2nd & 3rd defendants show that the 3rd defendant visited Kenya in many instances.
16. Counsel stated that the 3rd defendant’s passport shows that she entered Kenya on 19th December, 2018 and exited on 22nd January, 2019, entered Kenya on 25th July, 2019 and exited on 28th July, 2019, and entered Kenya on 19th October, 2022 and exited on 31st October, 2022. Counsel contended that, it was not true that the 2nd & 3rd defendants were not in Kenya. In support of its prayer for thrown away costs, Counsel relied on the decisions in Kenya Alliance Insurance Co. Limited v Eunice Nyaboke Nyaribari & NIC Bank Limited [2021] eKLR and Elijah Adul v Patrick Lang’at & another [2020] eKLR. She submitted that the 2nd & 3rd defendants had not made out a case to warrant being granted the orders sought, thus the application herein ought to be dismissed.
ANALYSIS AND DETERMINATION.
17. Upon consideration of the instant application, the grounds on the face of it, the affidavits filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties, the issue that arises for determination is whether the ex parte judgement should be set aside and leave be granted to the 2nd & 3rd defendants to defend the suit.
18. Setting aside of ex parte judgments is provided for under Order 12 Rule 7 of the Civil Procedure Rules, 2010 which states as follows-
Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
19. In the case Mohamed & another v Shoka [1990] KLR 463, the Court set out the factors that should be considered when dealing with applications for setting aside ex parte judgment to include -
i) Whether there is a regular judgment;
ii) Whether there is a defence on merit;
iii) Whether there is a reasonable explanation for any delay;
iv) Whether there would be any prejudice.
20. The issue of regular judgments was addressed in the case Mwala v Kenya Bureau of Standards EA [2001] 1 EA 148, where the court stated -
…to all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.
21. The suit between the parties herein was filed on 13th July, 2018 and Summons to enter appearance issued on 17th July, 2018. From the record, it is clear that the 2nd & 3rd defendants could not be traced for purposes of personal, physical service of the said Summons. The Court on 11th July, 2019 granted the plaintiff leave to serve the said Summons by registered post to their last known addresses. On 16th July, 2019, the said Summons were sent to the 2nd & 3rd defendants vide their postal addresses provided to the plaintiff at the time of loan application.
22. Subsequently, the plaintiff made an application for request of judgment on 28th August, 2019 on the strength of the affidavit of service sworn by Ms. Mvula on 28th August, 2019 where she averred that she served the 2nd & 3rd defendants with summons to enter appearance via registered post to their last known postal addresses. As proof of service, Ms. Mvula annexed to her supporting affidavit a payment receipt issued to her by the Postal Corporation of Kenya. Upon perusal of the record, it is evident that interlocutory judgment was entered against the 2nd & 3rd defendants on 24th September, 2019.
23. The 2nd & 3rd defendants contend that at the time of the said service, they were not in the country, the 2nd defendant was in Somalia where he works while the 3rd defendant was in Tanzania where she is married and runs her business. For this reason, they could not be expected to have had access to their postal addresses to receive the Summons to enter appearance issued in this case. From the record, there is no evidence adduced by the 2nd & 3rd defendants of the 2nd defendant’s absence from Kenya at the time of service of Summons or otherwise, therefore this Court is not persuaded that the 2nd defendant was unable to access his postal address to receive the Summons sent to him by the plaintiff.
24. The 3rd defendant on the other hand has demonstrated that she has been in and out of the country on several occasions in the year 2018 and 2019. For instance, she entered Kenya on 19th December, 2018 and exited on 22nd January, 2019, and entered Kenya on 25th July, 2022 and exited on 28th July, 2022. It is however impossible to ascertain from her passport whether or not she was in the Country at the time of service of the Summons to enter appearance. The above notwithstanding, the plaintiff had leave of Court to serve the said Summons upon the 1st, 2nd & 3rd defendants via registered post to their last known addresses. Therefore, whether or not the said defendants were in the Country, the plaintiff was deemed to have effected service upon sending the Summons to the 1st, 2nd, & 3rd defendants last known postal addresses.
25. The 1st, 2nd & 3rd defendants on the other hand had a duty to ensure that their postal boxes were regularly checked so as to ensure that anything sent to them via their postal addresses were brought to their attention in good time for them to respond accordingly.
26. It was submitted by the 2nd & 3rd defendants’ Counsel that the above notwithstanding, the said Summons had expired by the time they were served, and since it takes two to three days for a document/letter sent by registered post to reach its destination, service can only be deemed to have been effected after the Summons had been delivered to the recipient’s postal box.
27. Section 3(5) of the Interpretation and General Provisions Act provides that -
“ Where any written law authorizes or requires a document to be served by post, whether the expression “serve” or “give” or “send” or any other expression is used, then, unless a contrary intention appears, the service shall be deemed to be effected by properly addressing to the last known postal address of the person to be served, prepaying and posting, by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post.”
28. During cross-examination of Ms. Mvula, the Court Licensed Process Server who effected service of the Summons in issue, she stated that she served the 2nd & 3rd defendants with Summons via registered post, thus the said Summons could only be received after two to three days. Therefore, if it took three days for the Summons to reach the 2nd & 3rd defendants, they would have received the Summons on 19th July, 2019. Pursuant to the provisions of Order 5 Rule 2(1) of the Civil Procedure Rules, 2010, service of Summons to enter appearance shall be valid in the first instance for twelve (12) months beginning with the date of its issuance.
29. In this case, the Summons to enter appearance in question were issued on 17th July, 2018, which means that the said Summons were valid up to 16th July, 2019. Evidence has been led to the effect that the Summons issued were sent to the 2nd & 3rd defendants via registered post on 16th July, 2019, a day before they expired. From the foregoing, it is clear that the said Summons were expected to be delivered to the 2nd & 3rd defendants postal boxes either on 18th or 19th July, 2019. This means that by the time of receipt of the said Summons, they were invalid thus of no consequence since they had expired.
30. In light of the foregoing, it is my finding that there was no proper service of Summons to enter appearance on the 2nd & 3rd defendants, therefore the ex parte judgment entered in favour of the plaintiff against the 2nd and 3rd defendants was irregular and is for setting aside ex debito justitiae.
31. The upshot is that the application herein is merited. It is allowed as prayed. The 2nd and 3rd defendants are granted leave to file and serve their statement(s) of defence within thirty (30) days from today. Costs shall be in the cause.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 20th day of September, 2024. Ruling delivered through Microsoft Teams online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Ms Oyando h/b for Mr. Fundi for the plaintiff
Ms Atukunda h/b for Mr. Kurauka & Co. Advocates for the 2nd & 3rd defendants
Mr. B. Wokabi – Court Assistant.