Automated Summary
Key Facts
The court set aside the default interlocutory judgment against Poundberry Limited (Defendant) after determining that service of summons was properly effected via email and WhatsApp to the Defendant's Director, Mr. Bob Kioko. The Defendant filed a defense out of time, raising triable issues regarding alleged fraud by the Plaintiff (Esnad General Trading Limited) over N95 mask procurement. The court allowed the Defendant 14 days to file a formal defense and ordered them to pay the Plaintiff's costs of Kshs. 25,000/=. The ruling emphasized the importance of procedural compliance and judicial discretion to avoid injustice.
Issues
- The court assessed if the Defendant's application to set aside the default judgment met the criteria under Order 10 Rule 11, including whether the defense raised triable issues (e.g., denial of fraud and supplier communication), the absence of delay in filing the application, and whether justice required setting aside the judgment despite potential prejudice to the Plaintiff.
- The court considered the merits of the Defendant's application for a stay of execution of the decree. However, since the interlocutory judgment was set aside, the court concluded that evaluating the stay application was unnecessary and deferred further action on this aspect.
- The court examined whether service of summons was properly effectuated on the Defendant, particularly focusing on electronic service via email and WhatsApp as permitted under Order 5 Rules 22B and 22C of the Civil Procedure Rules, 2020. The Defendant contended service was irregular as it was delivered to a former director, but the court found evidence of valid service through the email address listed in the CR12 form and the Defendant's subsequent filing of a memorandum of appearance.
Holdings
- The court determined that the service of summons on the defendant was properly effected through electronic mail, as required by Order 5, Rule 22B of the Civil Procedure (Amendment) Rules, 2020. The email address used was confirmed as the defendant's registered contact, and a memorandum of appearance was filed in response.
- The court ruled that the defendant's defense, which denies fraud and cites supplier unavailability, presents triable issues that require judicial examination and trial, as defined by the Court of Appeal in Isaac Awuondo v Surgipharm Limited & Another (2011) eKLR.
- The court set aside the default interlocutory judgment against the defendant due to the presence of a valid defense with triable issues and no unreasonable delay in the application. The defendant was granted 14 days to file a defense and ordered to pay Kshs. 25,000 in throwaway costs to the plaintiff.
Remedies
- The defendant must pay the Plaintiff throw away costs of Kshs. 25,000/= within 14 days of this ruling.
- The court set aside the default interlocutory judgment entered on 28 January 2022 against the defendant.
- The defendant is required to file and serve its Statement of Defence and all accompanying documents within 14 days from the date of this Ruling.
- If the defendant fails to comply with the 14-day filing requirement, the order vacating the interlocutory judgment will automatically lapse.
Legal Principles
The court applied principles of procedural fairness and judicial discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a default judgment. It emphasized the importance of proper service of summons via electronic means under Order 5 Rules 22B and 22C, and considered whether the defendant's defense raised triable issues. The ruling highlighted that a default judgment can be set aside if it is in the interest of justice, particularly when the defense presents a prima facie case and the plaintiff can be compensated for delays via costs.
Precedent Name
- Sebel District Administration v Gasyali & Others
- Oyunge Barnabus & 3 others (Suing as Administrators of the estate of Mathayo Ratemo Mayaka (deceased)) v Charles Oteki Rioba
- Philip Kiptoo Chemwolo & Mumias Sugar Company Ltd v Augustine Kubende
- Patel v EA Cargo Handling Services Ltd
- Isaac Awuondo v Surgipharm Limited & Another
- James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
Cited Statute
- Civil Procedure (Amendment) Rules, 2020
- Civil Procedure Rules, 2010
- Civil Procedure Act
Judge Name
Jn Mulwa
Passage Text
- The Applicant claims that there was no proper service as Summons to Enter Appearance and the Plaintiff were delivered to a recipient not authorized to receive summons as the recipient had ceased being a director of the company at the time of service.
- In view of the foregoing, the court find that service was properly effected upon the Defendant in accordance with the provisions of Order 5, Rule 22B of the Civil Procedure (Amendment) Rules, 2020.
- the court finds that it is in the interest of justice that the interlocutory judgment entered herein against the Defendant be set aside and the Defendant be accorded an opportunity to ventilate its Defence.