Rapando v Ouma & 6 others

High Court, at Kisumu February 9, 2004

Warsame J

Civil Suit No 258 of 2000

Civil Practice and Procedure – service of summons – personal services – circumstances in which personal service can be dispensed with – return of service - matters that a process server must state in his return of service.

Civil Practice and Procedure – summons to enter appearance–– form of summons–– duration which summons should give for the defendant to enter appearance – summons requiring appearance within 10 days from the date of service – whether such summons valid.

Civil Practice and Procedure–– judicial discretion–– application to set aside an order made out of the exercise of discretion by a judge–– application to set aside ex parte judgment – principles on which a court will interfere with a discretionary order.

The1st defendant/applicant came to court by way of a chamber summons praying that the exparte judgment and all consequential orders be set aside and/or reviewed and that the defendant be granted leave to file defence out of time. He argued that at the time the alleged service was effected, he was sick and was being treated at St Elizabeth Hospital, Mukumu which was to confirm that no service was effected upon him. He further alleged that he did not know anybody identified by the two names whom the process server claimed to have served the summons on his behalf.

The plaintiff /respondent argued that the 1st defendant was guilty of laches and that in any event he had been properly served.

Held:

1. Under order V rule 9 (1) of the Civil Procedure Rules whenever it is practicable, service shall be made on the defendant in person unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.

2. It is mandatory that the person serving must state in a return of service the following:

a) The time when service was effected on the said person;

b) The manner in which summons were served;

c) The name and address of the person identifying the person served;

d) The place where service was effected;

e) Whether the person serving is known to the person served;

f) If there is no personal service, the person serving must indicate the relationship between the person served and the person summons were directed at in a precise manner; and

g) Must indicate that he required his/her signature in order to validate any purported service as that is the mandatory requirement of order V rule i5 and failure to adhere to the same would lead to rejection of such irregular service.

3. There should be no limits or restriction on the judge’s discretion to set aside ex parte judgment except that if he does vary the judgment he does so on such terms as may be just. The main concern of the Courts is to do justice to the parties and the Court will not impose conditions on itself to fetter the wide discretion given by the rules save that discretionary power must be exercised judicially and not arbitrarily in order to safeguard the interest of both parties.

4. A summons to enter appearance requiring the person upon whom it is served to enter appearance within 10 days from the date of service instead of giving at least 10 days is defective and such defect makes the summons effected on the applicant improper and irregular.

5. The power to set aside ex parte judgment does not cease and/or extinguish because of the duration and or age of the decree.

Cases

1. Patel v EA Cargo Handling Services Ltd [1974] EA 75

2. Shah, Atulkumar Maganlal v Investment & Mortgages Bank Ltd & 2 others Civil Appeal No 13 of 2001

3. Ceneast Airlines Ltd v Kenya Shell Ltd Civil Appeal No 174 of 1999

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order V rules 9(1), 12; 15 order IXX rules 10, 11

2. Civil Procedure Act (cap 21) section 3A

Advocates

Mr Otieno for the Applicant

Mr Kasamani for the Respondent