Gatahi v Simba Fresh Produce Limited (Cause E482 of 2020) [2023] KEELRC 1320 (KLR) (3 May 2023) (Ruling)

Key Facts

Issues

• The court considered whether the ex parte proceedings and orders, including the default judgment and warrants of attachment, should be set aside due to alleged irregularities in service of summons. The respondent argued that the claimant failed to properly serve the summons, leading to an irregular judgment that must be nullified as a matter of judicial duty, citing cases like Patel v EA Cargo Handling Services Limited and James Kanyita Nderitu v Marios Philotas Ghikas.
• The court evaluated whether granting the respondent's application to set aside the judgment would prejudice the claimant. The claimant contended that the respondent's late application was an abuse of process aimed at denying her the fruits of judgment, while the respondent argued the claimant's inconsistent use of email addresses for communication demonstrated deceit and justified the relief sought.

Holdings

• The court granted the stay sought and set aside its judgment entered on June 22, 2022, as well as all subsequent decrees and warrants issued. The costs of this application and the ensuing execution costs will depend on the outcome of the hearing before another court.
• The court ordered the immediate and unconditional release of the respondent's property subject to any attachment, citing the claimant's inconsistent use of email addresses for service as evidence of potential deceit in asserting proper service.

Remedies

• The costs of this application and the ensuing costs on execution will abide the outcome of the hearing to be held before another court.
• The court grants the stay sought and sets aside its judgment entered on June 22, 2022 as well as all subsequent decrees and warrants issued.
• The court sets aside its judgment entered on June 22, 2022 and all subsequent decrees and warrants issued.
• The property of the respondent subject to any attachment be released immediately and unconditionally.

Legal Principles

• The court exercised its discretion to set aside ex parte orders under the principle of judicial review, considering the claimant's failure to serve the respondent and the resulting prejudice. The decision aligns with precedents allowing courts to revoke coercive orders when procedural irregularities occur.
• The court emphasized that service of summons is a fundamental aspect of natural justice, ensuring parties have the opportunity to be heard. Where a party is not served, default judgments are irregular and must be set aside ex debito justitiae to uphold judicial integrity.

Precedent Name

• Patel v EA Cargo Handling Services Limited
• James Kanyita Nderitu & another v Marios Philotas Ghikas & another
• Patrick Omondi Opiyo T/A Dallas Pub v Shaban Keah & another
• Winnie Wambui Kibinge & 2 others v Match Electricals Limited

Cited Statute

Judge Name

Passage Text

• The court grants the stay sought and sets aside its judgment entered on June 22, 2022 as well as all subsequent decrees and warrants issued. The costs of this application and the ensuing costs on execution will abide the outcome of the hearing to be held before another court.
• Service of summons accords the sued party the opportunity to be heard before any orders are issued against him/her. That is the essence of the rules of natural justice which all legal systems applaud. Where therefore judgment is entered against a party who has not been served and hence not been heard, such judgment will be set aside ex debito justitiae.
• The claimant submitted that she served the respondent through its official email address info@simbafreshproduce.com as indicted on its official website. This was the email address she used to send the summons, the mention and hearing notices, the taxation notice and as such seems to be the means the claimant preferred to use.