1.For determination is the motion dated April 6, 2022 by Equity Group Foundation the 1st Defendant/Applicant seeking that the interlocutory judgment entered against it and all consequential order be set aside. The motion is expressed to be brought under Section 1A & 63 of the Civil Procedure Act (CPA) and Order 10 Rule 11 of the Civil Procedure Rules (CPR), among others. The grounds on the face of the motion are amplified in the supporting affidavit of Samuel Wamaitha who describes himself the legal manager of the 1st Defendant and duly authorized to depose to the matters therein.
2.The gist of his affidavit is that on February 10, 2022 the 1st Defendant filed a motion under Section 6(1) of the Arbitration Act dated February 9, 2022 seeking to refer the instant dispute for arbitration and subsequently on February 15, 2022 counsel on record for the 1st Defendant noted from the e-filing portal that Real Time Company Limited, the Plaintiff/Respondent, had filed a request for judgment prompting his letter dated February 15, 2022 to the Plaintiff’s advocate to inquire when the summons to enter appearance were served upon the 1st Defendant and that on February 16, 2022 counsel noted that the Plaintiff’s advocate had filed a further request for judgment against the 1st Defendant, which request was supported by an affidavit of service dated February 14, 2022. Thus, he sent a further letter dated February 18, 2022 to the Plaintiff’s advocate asserting that no proper service was effected and also appraised them of the existence of the pending motion for arbitration; that on March 28, 2022 when the 1st Defendant’s counsel checked the Judiciary e-filing portal he noted that the matter had been set down for formal proof on May 4, 2022, prompting his protest to the court vide a letter dated March 29, 2022 disputing jurisdiction to enter judgment. He discovered that interlocutory judgment had been entered as against the 1st Defendant on February 21, 2022.
3.He proceeds to depose that the 1st Defendant was not properly served with summons to enter appearance as required by the Civil Procedure Rules (CPR). That the 1st Defendant has a defence to the Plaintiff’s claim, but the dispute is subject to arbitration. He further asserts that the Plaintiff’s request for interlocutory judgment while it was aware of the pending arbitration motion amounts to an abuse of the court process and that by dint of Section 6(2) of the Arbitration Act, the interlocutory judgment is void and ought to be setting aside. The deponent points out that the Plaintiff’s assets are unknown and any execution resulting from judgment herein would be prejudicial to the 1st Defendant as it would not be in a position to recover any sums paid out to the Plaintiff.
4.The Plaintiff opposes the motion by way of a replying affidavit deposed by Lilian Awour Atho, described as a director of the Plaintiff and duly authorized to depose. She asserts that the judgment was regularly entered in default of appearance after summons were duly served upon the 1st Defendant on October 29, 2021. That by dint of Order 5 Rule 22B (1) and (2) of the Civil Procedure Rules, service of summons was properly effected upon the 1st Defendant through its last confirmed and used email address firstname.lastname@example.org and a delivery receipt received on the same.
5.She contends that the Plaintiff was within its right to request for interlocutory judgment and that the 1st Defendant’s motion dated February 9, 2022 had not been served and in any event was filed two weeks after the request for interlocutory judgment had been lodged. The deponent further asserts that the 1st Defendant’s motion seeking to refer the matter to arbitration was overtaken by events upon entry of the interlocutory judgment being entered and pointed out that the 1st Defendant advocates correspondence with the Court was erroneously addressed to the Deputy Registrar Commercial and Tax Division rather than the Deputy Registrar Civil Division. Moreover, that the 1st Defendant has also not attached a draft defence while section 6(2) of the Arbitration Act does not apply to the matter at hand. She asserted that the motion is incurably defective and ought to be dismissed with costs.
7.Counsel for the Plaintiff for her part defended the interlocutory judgment. Citing the provisions of Order 10 Rule 9 & 10 of the Civil Procedure Rules, and the case of Kimani v Mc Connell  EA 545 and Fidelity Commercial Bank Ltd v Owen Amos Ndungu & Another HCCC No 241 of 1998 counsel asserted that the judgment entered against the 1st Defendant was regular, as the said Defendant had been duly served with summons to enter appearance at their last known address using the judiciary e-filing service pursuant to Order 5 Rule 22B(1) & (2) of the Civil Procedure Rules but failed to enter appearance or file a defence within the stipulated time. She emphasized that the return of service cited the confirmation equivalent to a delivery report on successful service upon the 1st Defendant that was generated on October 29, 2021 via the Judiciary e-filling portal. Hence, summons was properly served and the resultant judgment was therefore regular. And in the circumstances, the court ought not to set aside the default judgment against the 1st Defendant’s which by indolence has deliberately sought to obstruct or delay the course justice.
9.The Court has considered the rival affidavit material and submissions in respect of the motion. The default judgment herein was entered against both Defendants, but it seemed that while the motion was filed by the 1st Defendant the prayer seeking the setting aside of the default judgment is not confined to the 1st Defendant alone. Nevertheless in view of the fact that the issues arising from the motion equally affect the two Defendants, the Court will consider the application as if made jointly by the two Defendants. The motion is expressed to be brought under Section 1A of the Civil Procedure Act (CPA) and Order 10 Rule 11 (CPR). The power of the court to grant or refuse an application to set aside or vary such judgment or any consequential decree or order, is discretionary. The discretion is also wide and unfettered, however, like all judicial discretion it must be exercised judicially and justly. The objective of the discretion that is conferred upon the court was spelt out in the case of Shah –vs- Mbogo and Another  EA 116 as follows:
10.Order 10 Rule 11 of the Civil Procedure Rules upon which the 1st Defendant’s motion is anchored provides that: -
12.Two fundamental questions falling for determination here are whether the Defendants were duly served with summons to enter appearance, and whether default judgment could be properly entered in this case in light of the provisions of section 6(2) of the Arbitration Act. And ultimately, the court will determine whether the default judgment herein is regular. Through its affidavit material, the 1st Defendant has vehemently denied service of summons and stating that the affidavit of service herein does not demonstrate proper service as contemplated under Order 5 of the Civil Procedure Rules. The Plaintiff on its part contended that by dint of Order 5 Rule 22B (1) and (2) of the Civil Procedure Rules, service of summons was properly effected upon the 1st Defendant through its last confirmed and used email address, namely email@example.com and the 2nd Defendant via email address Muigai.firstname.lastname@example.org and a delivery receipt generated.
13.The purpose of the requirement for effective service of summons cannot be disputed. As stated by the Court of Appeal in Giro Commercial Bank Ltd (supra): -
14.The Plaintiff’s request for interlocutory judgment was supported by the affidavit of service deposed by a counsel, Neddie Eve Akello. The deponent asserted at paragraph 2, 3, 4 and 5 that:-
15.The Defendants had been sued as body corporates. The procedure for effecting service of summons on a corporation is prescribed under Order 5 Rule 3 of the Civil Procedure Rules and the contents of the affidavit of service stipulated in Order 5 Rule 15 of the Civil Procedure Rules. Order 5 Rule 3 of the (CPR) provides that:-
16.Order 5 Rule 15 of the same rules provides that:-
17.Admittedly, this suit was filed in 2020 at the onset of the Covid-19 Pandemic in Kenya. In February of 2020 vide Legal Notice No 22 of 2022 the Civil Procedure Rules were amended to include the new Rules 22A, 22B & 22C to Order 5 of the CPR, thus introducing new modes of service. The relevant rule for purposes of this case Rule 22B which provides that; -
18.Previously, personal service in the first instance was considered ideal. The above amendments transformed the process of service of summons by introducing service by way of electronic mail services. As rightly asserted by the Plaintiff, at the height of the Pandemic, the judiciary leadership vide Gazette Notice No 3137 of 2020 published “Practice directions for the protection of Judges, Judicial officers, Judiciary Staff, Other Court Users and the General Public from the Risks associated with the Global Corona Virus Pandemic” . Paragraph 5 of the Directions was to the effect that;-
19.Thus, to my mind, the question is whether the asserted service and return of service complied with the applicable rules of procedure. Order 5 Rule 3 (a) provides that service on a corporation should be effected on a principal officer of the corporation unless the process server is unable to trace such officers for service, in which event other options are provided for. The introduction of service of summons by electronic mail through Rule 22B of Order 5 in my view merely expanded the alternate modes of service but did not render Rule 3 (a) otiose. Thus, the two Rules read together provided for service in the first instance on a corporation through its principal officer either in person or by way of electronic mail or if such officer or his last confirmed and used email address could not be found by the process server, by electronic mail to the corporation’s last confirmed and used e-mail address. Of course, the other alternate modes of service in Rule 3 (b) were also available in the latter event.
20.Neddie Eve Akello who deposed the affidavit of service stated therein that she …. “requested for the e-filing service of summons to enter appearance upon the Defendants on the addresses provided in accordance with Order 5 Rule 22B of the Civil Procedure Rules “and cited the email addresses used for service in respect of the Defendants. She swore that she “received a confirmation of successful service upon the Defendants together with the copy of the summons to enter appearance duly generated on 29th day of October 2021 still via e-filing portal”. She exhibited as annexures “NEA-1” being an approval for E-service–acknowledgment and “NEA-2” an acknowledgement of filing of summons. Therefore, it was the Plaintiff’s contention that service of summons was duly effected using the Judiciary E-filing Portal.
21.First, it is evident from the affidavit of service that the Plaintiff served the “Defendants” (corporations) directly in the first instance. There is no reference in the affidavit to any prior attempt made to reach the principal officers of the said Defendants to effect service upon them by electronic mail. The alternate mode of service upon the corporation itself rather than its principal officers has therefore not been justified. In any event for the alternate service to be proper, Order 5 Rule 22B CPR requires the service to be effected upon the defendant's last confirmed and used email address and that service shall be deemed to have been effected when the sender receives a delivery receipt to be attached to the affidavit of service of the officer of the court duly authorized to effect service. The Plaintiff’s annexures NEA- 1 and 2 are ex facie not electronic mail directed to the Defendants’ email addresses. Moreover, the contract or agreement that was the purported source of the Defendants’ email address was not attached to the affidavit to demonstrate whether it had been used for correspondence with the Plaintiff and or that the said address was Defendants’ last confirmed email address. To compound matters, the affidavit of service did not contain the sender’s delivery receipt as required by Rule 22B (4) of the Civil Procedure Rules.
22.Electronic service of summons as contemplated in Order 5 Rule 22B of the Civil Procedure Rules was intended to be effected between parties through electronic mail and not through the Judiciary E-filing System as appears to be what the Plaintiff attempted here. In the premises, while the Defendants evidently had notice of and filed notices of appointment and the arbitration motion in this suit, it cannot be said that there was proper service of summons to enter appearance upon the Defendants, in compliance with Order 5 Rule 3 as read with Rule 22B.
23.On the second issue, the provisions of section 6(1) and (2) of the Arbitration Act are clear:
24.It is not disputed that by the date of the entry of the interlocutory judgment against the Defendants, an application seeking referral to arbitration had been lodged by the Defendants. Inexplicably, that application had not been printed and placed on the physical file at the time of entry of judgment and was (judging from the hitherto physical sequence of material on file, now rearranged chronologically) apparently placed on the file after the motion herein was set down for hearing. Had the application been on the file, the Deputy Registrar of this Court would not have allowed the Plaintiff’s request for default judgment in light of the provisions above.
25.Thus, the entry of the default judgment in the circumstances was due to omissions by the registry to promptly print and place the arbitration motion on the file. Indeed, the motion must have been seen by the Plaintiff’s advocate on the e-filing portal as the she evidently accessed the portal severally to press for the entry of the default judgment. The default judgement runs afoul of the provisions of section 6(2) of the Arbitration Act, and it matters not that the Plaintiffs had not been served with the motion seeking referral to arbitration. For this reason and the fact that service of summons to enter appearance was not properly effected upon the Defendants, the default judgment against the two Defendants is irregular and must be set aside ex debito justitiae. However, as only the 1st Defendant appeared to participate in the motion, the court will award thrown away costs to the 1st Defendant alone.
26.The motion seeking referral of this suit to arbitration dated March 9, 2022 will immediately hereafter be set down for hearing.