Automated Summary
Key Facts
The 3rd and 4th defendants (Bernard Njoroge Wachai and Lydia Wanjiru Ndunda) applied to set aside an ex-parte judgment entered against them by CFC Stanbic Bank. The judgment arose from a guarantee of Kshs.7,800,000/=/ for the 1st defendant's loan default. The defendants claimed they were not served with summons or the notice of judgment, and disputed the discrepancy between the amount in the Notice to Show Cause (Kshs.7,800,000/=) and the decree (Kshs.15,043,608/55). The court found the 3rd defendant was properly served at his business premises, and the 4th defendant through her husband. While the judgment itself was upheld, the court set aside the execution proceedings (Notice to Show Cause) due to the amount discrepancy and improper service of the notice of entry of judgment. The plaintiff was awarded costs of the application.
Issues
- The court evaluated whether the 3rd and 4th defendants were validly served with summons to enter appearance. The 3rd defendant initially denied service, claiming the process server lied about meeting him and his wife. However, the process server’s detailed testimony confirmed service at the defendants’ business premises, including the 3rd defendant’s identification and admission of his role as a director. The court concluded service was proper, citing Order 5, Rule 12, which permits service on an adult family member residing with the defendant. The 4th defendant’s service via her husband was upheld as lawful.
- The court assessed whether the 3rd and 4th defendants demonstrated good cause to set aside the ex-parte judgment. They argued lack of service, absence of a notice of entry of judgment, and a discrepancy between the Notice to Show Cause (Kshs.7,800,000) and the decree amount (Kshs.15,043,608). The court found no triable defense, noting the defendants admitted executing the guarantee for Kshs.7,800,000 and failed to dispute the service. While the amount discrepancy was acknowledged, the court ruled it could be resolved at the execution stage and did not warrant setting aside the judgment.
Holdings
- The court upheld that service on the 4th Defendant was valid under Order 5, Rule 12 of the Civil Procedure Rules, 2010. It ruled that service on the 3rd Defendant (as the 4th Defendant's husband) was sufficient, as the 3rd Defendant admitted to his marital relationship and authority to accept legal process on her behalf. The 4th Defendant did not contest these facts through sworn testimony.
- The court found the 3rd and 4th Defendants' dispute over the exact indebtedness amount did not constitute a triable issue. It emphasized that discrepancies between the Notice to Show Cause and the Decree could be resolved at the execution stage, and the guarantees executed by the Defendants were not denied. The court concluded that this issue did not justify setting aside the judgment.
- The court set aside the execution proceedings (Notice to Show Cause) due to the amount discrepancy and failure to serve the notice of entry of judgment. However, the ex-parte judgment itself was not set aside. Costs of the application were awarded to the Plaintiff, and the court emphasized the need for proper service of a fresh Notice of Entry of Judgment before renewed execution.
- The court determined that the 3rd Defendant was properly served with summons to enter appearance and the Plaint. The Process Server's consistent testimony and the 3rd Defendant's eventual acknowledgment of his identity and role as a director of the 1st and 2nd Defendant companies supported this finding. The court concluded that the 3rd Defendant attempted to evade service by misrepresenting his identity as 'Mr. Kamau' during initial encounters.
Remedies
- The costs of the application were awarded to the Plaintiff, indicating the court found the application lacked merit in part.
- The court set aside the execution proceedings (Notice to Show Cause) and directed that a fresh Notice of entry of Judgment be served whereupon proper execution process may be proceeded with.
- The court declined the prayer to set aside the interlocutory judgment, maintaining the original judgment against the 3rd and 4th Defendants.
Legal Principles
The court emphasized the principles of natural justice, ruling that the 3rd and 4th Defendants were properly served under Order 5, Rule 12 of the Civil Procedure Rules. It held that service on a spouse (4th Defendant) via her husband (3rd Defendant) was valid, and that procedural irregularities in the Notice to Show Cause did not invalidate the ex-parte judgment. The decision underscores the importance of ensuring parties are afforded a fair opportunity to defend claims before final judgments are entered.
Precedent Name
- Day v RAC Motoring Services Ltd
- Chemwology & Ano v Kubembe
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules, 2010
Judge Name
- A. Mabeya
- H. B. Havelock
Passage Text
- 23. In view of the discrepancy in the amounts in the Notice to Show Cause and the Decree and failure to effect service of the notice of entry of judgment, I will set aside the execution proceedings, to wit, the Notice to Show Cause and direct that a fresh Notice of entry of Judgment be served whereupon proper execution process may be proceeded with. As regards the prayer to set aside the judgment, the same is declined.
- 18. From the Affidavit of Service of Francis Kiongo Chabari sworn on 1st July 2011 and his testimony in Court, the Process Server made several attempts to effect service upon the 3rd and 4th Defendants at the Offices of the 1st Defendant... I am therefore of the view that in the circumstances of this case, the service upon the 4th Defendant through her husband was proper and effective.
- 22. I have considered that the execution or existence of the guarantees have not been denied. The amount guaranteed is also not denied... That can be easily ascertained by the Deputy Registrar at the execution stage. That cannot in my view affect the judgment properly entered.