INTRODUCTION
1. Before the Court was the Notice of Motion dated 26th January 2025, in which the Applicant sought leave to effect service of summons upon the Plaintiff by way of international registered courier and electronic mail.
BACKGROUND
2. The primary suit before the Court was an Originating Summons seeking recognition and enforcement of judgments delivered by the High Court of Malawi on 8th December 2023 and 16th February 2024 in Commercial Cause Number 268 of 2022: Toufiq Bilal Limbarda t/a Moon Puffs v Libertas General Insurance Company and Zep Re PTA Reinsurance Company, as judgments of the High Court of Kenya.
3. The suit had been initiated by the Defendant/Applicant for purposes of executing the foreign judgment against a Third Party.
4. The Applicant submitted that, prior to the commencement of the suit, it was necessary that all parties be duly served and afforded an opportunity to participate in the proceedings.
5. It was the Applicant's position that while the Third Party had been served, the Plaintiff was not resident in Kenya but was domiciled in Malawi. Consequently, the present application sought leave to serve the Plaintiff outside the jurisdiction through international courier and electronic mail.
ISSUE FOR DETERMINATION
6. The sole issue for determination is whether leave ought to be granted to serve summons upon the Plaintiff in Malawi?
ANALYSIS AND DETERMINATION
7. The Applicant averred that the Plaintiff was a company domiciled in Malawi with its registered head office situated at Siemssen Road, Limbe, Malawi. In addition, the Plaintiff maintained branch offices in Blantyre and Lilongwe within Malawi.
8. The Applicant referred to a letter dated 26th November 2022, authored by the Plaintiff, which confirmed that its registered head office was located at Siemssen Road, Limbe, Malawi. The said correspondence also indicated the Plaintiff’s postal address as P.O. Box 5639, Limbe, Malawi, and its official email address as moontigerpuffs@gmail.com.
9. The Applicant contended that the Plaintiff was a necessary and proper party to the proceedings, whose participation was essential for a fair and just adjudication of the matter.
10. The applicable law is as follows:
Order 5 Rule 22A(1) of the Civil Procedure Rules provides that:
“Summons may be sent to the defendant by way of registered courier service provider; service shall be effected only with the leave of the Court through an internationally registered and recognized courier service provider to the defendant's last known physical address.”
11. In Law Society of Kenya v Martin Day & 3 Others (2015) eKLR, where the Court held:
“It is not sufficient for a plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The circumstances of this case are such that summons must be served in the manner provided for in the rules to enable the defendants who have no registered office or business in Kenya submit to the jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient enough to proceed against them. They may be aware of the suit but unless they are prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.”
12. Further to the above, in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 Others [2019] eKLR, the Court of Appeal stated as follows:
“The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purpose of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction.”
13. Guided by the facts and the law as set out above, I am persuaded that the applicant has made out a sufficient case for warrant leave to effect service outside of the courts Jurisdiction.
14. In particular, I am satisfied that the Applicant has demonstrated the respondent is a necessary party to the proceedings and prima facie that there exists a cause of action to which the parties ought to be heard. Moreover, I am satisfied that the applicant has sufficiently identified the location and contact details of the Plaintiff, who is resident in Malawi, and has no registered office or place of business in Kenya. In the circumstances, I find that no prejudice would be occasioned by granting leave to effect service outside of the jurisdiction, and in compliance with Order 5 Rules 22A and 22B of the Civil Procedure Rules.
15. Based on the reasons set out above, I find the application is with merit. The same is allowed.
16. The Applicant is hereby granted leave to serve summons upon the Plaintiff by way of internationally registered courier to its address at Siemssen Road, Limbe, Malawi, and by electronic mail to moontigerpuffs@gmail.com.
17. Costs shall be in the cause.
1. Before the Court was the Notice of Motion dated 26th January 2025, in which the Applicant sought leave to effect service of summons upon the Plaintiff by way of international registered courier and electronic mail.
BACKGROUND
2. The primary suit before the Court was an Originating Summons seeking recognition and enforcement of judgments delivered by the High Court of Malawi on 8th December 2023 and 16th February 2024 in Commercial Cause Number 268 of 2022: Toufiq Bilal Limbarda t/a Moon Puffs v Libertas General Insurance Company and Zep Re PTA Reinsurance Company, as judgments of the High Court of Kenya.
3. The suit had been initiated by the Defendant/Applicant for purposes of executing the foreign judgment against a Third Party.
4. The Applicant submitted that, prior to the commencement of the suit, it was necessary that all parties be duly served and afforded an opportunity to participate in the proceedings.
5. It was the Applicant's position that while the Third Party had been served, the Plaintiff was not resident in Kenya but was domiciled in Malawi. Consequently, the present application sought leave to serve the Plaintiff outside the jurisdiction through international courier and electronic mail.
ISSUE FOR DETERMINATION
6. The sole issue for determination is whether leave ought to be granted to serve summons upon the Plaintiff in Malawi?
ANALYSIS AND DETERMINATION
7. The Applicant averred that the Plaintiff was a company domiciled in Malawi with its registered head office situated at Siemssen Road, Limbe, Malawi. In addition, the Plaintiff maintained branch offices in Blantyre and Lilongwe within Malawi.
8. The Applicant referred to a letter dated 26th November 2022, authored by the Plaintiff, which confirmed that its registered head office was located at Siemssen Road, Limbe, Malawi. The said correspondence also indicated the Plaintiff’s postal address as P.O. Box 5639, Limbe, Malawi, and its official email address as moontigerpuffs@gmail.com.
9. The Applicant contended that the Plaintiff was a necessary and proper party to the proceedings, whose participation was essential for a fair and just adjudication of the matter.
10. The applicable law is as follows:
Order 5 Rule 22A(1) of the Civil Procedure Rules provides that:
“Summons may be sent to the defendant by way of registered courier service provider; service shall be effected only with the leave of the Court through an internationally registered and recognized courier service provider to the defendant's last known physical address.”
11. In Law Society of Kenya v Martin Day & 3 Others (2015) eKLR, where the Court held:
“It is not sufficient for a plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The circumstances of this case are such that summons must be served in the manner provided for in the rules to enable the defendants who have no registered office or business in Kenya submit to the jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient enough to proceed against them. They may be aware of the suit but unless they are prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.”
12. Further to the above, in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 Others [2019] eKLR, the Court of Appeal stated as follows:
“The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purpose of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction.”
13. Guided by the facts and the law as set out above, I am persuaded that the applicant has made out a sufficient case for warrant leave to effect service outside of the courts Jurisdiction.
14. In particular, I am satisfied that the Applicant has demonstrated the respondent is a necessary party to the proceedings and prima facie that there exists a cause of action to which the parties ought to be heard. Moreover, I am satisfied that the applicant has sufficiently identified the location and contact details of the Plaintiff, who is resident in Malawi, and has no registered office or place of business in Kenya. In the circumstances, I find that no prejudice would be occasioned by granting leave to effect service outside of the jurisdiction, and in compliance with Order 5 Rules 22A and 22B of the Civil Procedure Rules.
15. Based on the reasons set out above, I find the application is with merit. The same is allowed.
16. The Applicant is hereby granted leave to serve summons upon the Plaintiff by way of internationally registered courier to its address at Siemssen Road, Limbe, Malawi, and by electronic mail to moontigerpuffs@gmail.com.
17. Costs shall be in the cause.