Whether the service of the Notice of Motion dated February 21, 2023 was defective?
15.As a preliminary, judgment in this matter was entered on 26/02/2021 as against the Defendants jointly and severally. Under it, they were ordered to give the Plaintiff/Respondent vacant possession and subsequent transfer of the suit property measuring 50 by 100 which the Respondent had purchased from the Defendants herein. It appears that though the register of the suit land was opened in 2014 the 1st Plaintiff got himself registered on February 26, 2021, the same date of judgment and title to it issued to him on March 12, 2021.
16.Interestingly, and in contempt of court orders, immediately after judgment was delivered the 1st Defendant went ahead and charged the suit property with the Interested Party for the sum of Kshs 50,000,000/=. That was before effecting the transfer of the portion of part of the whole land the Court had found due to the Plaintiff.
17.This precipitated the Plaintiff to file an application seeking inter alia the committal to civil jail of the 2nd Defendant for disobedience of court orders, enjoinment of the Interested Party to the suit and the declaration that the charging of the suit property was illegal, null and void. Directions on service were issued and upon the court being satisfied with service upon the Defendants and the Interested Party gave orders inter alia enjoining the Interested Party into the instant suit but declining the orders for declaration of the charging of the suit property as illegal and or void on account the Interested Party were yet to be enjoined in the suit. It is on the basis of the court orders given on January 30, 2023 enjoining the Interested Party that the impugned Application was filed by the Plaintiff/Respondent seeking the declaration of the charging of the suit property as illegal, null and void.
18.It is trite that the law on service of documents in a corporation is governed by Order 5 Rule 3 of the Civil Procedure Rules 2010 on service upon corporation which provides that;
19.I am alive to the fact that Order 5 Rule 3 relates to service of summons upon a corporation. This Court has had occasion before to examine a scenario about service of a hearing notice as compared to summons to enter appearance and pronounced itself in detail. Thus, in Sifuna & Sifuna Advocates v Patrick Simiyu Khaemba  eKLR this court established that service of summons also applies mutatis mutandis to service of other court process including Applications by aptly stating that:-;
20.In terms of Order 5 Rule 5 of the Civil Procedure Rules, it is not in dispute that service upon a corporation ought to be done upon on the Secretary, Director or other Principal Officer of the corporation. Further, it is not issue that service of the Application dated February 21, 2023 was done: indeed, in terms of the Affidavit of Service sworn by Raphael N Simiyu on February 23, 2023 and supported by the copy of the application annexed to it, service was effected on the Bank Manager of the Kitale Branch of the Interested Party on February 23, 2023 at 11.45 am. This fact was not disputed by Lilian Sogo in her Affidavit sworn on March 22, 2023. However, what was disputed was that the service upon the Branch Manager of the Interested Party was improper and offended the provisions of Order 5 Rule 2 of the Civil Procedure Rules. It was contended particularly, that service ought to have been effected on either the Company Secretary or the deponed of the Supporting Affidavit who was the Head of Counsel of Litigation of the interested party.
21.From the deposition and contention of the said Lilian Sogo, only the Company Secretary was the one who could be served or her. This contention definitely does not accord with the law because it leaves out Directors and Principal Officers of the Interested Party as a corporation as the law requires. The deponent did not give the list of the persons or officers of the corporation who are principal officers thereof. Leaving aside Directors and the Company Secretary she (deponent of the Supporting Affidavit) cannot pretend to convince the Court that she is the only Principal Officer of the corporation. Even then, the officer who was served neither protested nor referred the process server to the Company Secretary or Head Counsel of Litigation for service of the Application. Instead, he accepted without any hesitation. How else could the process server imagine that he had not done service as required by law? Why, other than serving narrow selfish pecuniary interests, is it that the order made on February 27, 2023 being against their interest was the only one that could awaken the Interested Party into action? Most importantly, the Branch Manager who was served with the application in issue did not swear any affidavit to show that he or she did not have authority to receive the said Application delivered.
22.In its submissions, the Interested Party insisted that service of the Application should have been effected physically on the Secretary or the Head Counsel Litigation as the officers duly authorized to receive service. I do not think so. It is clear that Order 5 Rule 3 recognises service of court process on a principal officer of a corporation. In my view a Branch Manager falls within the purview of a principal officer as an officer as defined in Section 2 of the Companies Act as follows;
23.Again, in Bryan A Garner’s (2019) Black’s Law Dictionary, 11th Edition, Thompson Reuters, St Paul MN, p 1309, a principal officer is defined as 'An officer with the most authority of the officers being considered for some purpose.' Thus, the court, in Ephantus Gathua Muiyuro v Kenya Power & Lighting Company Ltd  eKLR, when faced with a similar scenario aptly held as follows;
26.I am persuaded by the above authorities to hold and determine that the manager of the bank is a principal officer in terms of the Companies Act and for the purposes of this suit: such officers are the ones who give the directional decisions of the branches of the Interested Party and the buck stops at them. Therefore, Md Lilian Sogo should not demean such authority wielded by the branch managers just for reason of trying to convince the Court to set aside the orders impugned. I am not persuaded by her contention on that.
27.Since the Branch Manager of the Kitale Branch of the Interested Party was duly served with the Application dated February 21, 2023 it was proper service of the Application . That in my humble view, means that the requirements of Order 5 Rule 3 of the Civil Procedure Rules were met and the argument by the Applicant is neither here nor there.
28.In setting aside ex parte orders, this court must be satisfied with one of two things: either the Applicant was not served with summons and in this case the impugned Application, or that he/it failed to appear in court for the hearing due to a sufficient cause. In the instance case, I have already determined that service of the Application dated February 21, 2023 was proper. The pertinent outstanding question then is whether the Interested Party’s non-compliance with respect to filing its Replying Affidavit in due time and non-attendance of court constitutes an excusable mistake or was a deliberate delay of the cause of justice as not to constitute sufficient cause.
31.In the instant case, I am of the considered view that the explanation given by the Interested Party for its failure to file its Replying Affidavit is neither reasonable nor excusable since they were indeed served with the Application, and acknowledged receipt by stamping on the principal document but they choose not to respond. They actually, unashamedly, do not attempt to explain the whereabouts of the said Application which was served. Instead, they only elected to rush to court after adverse orders had been issued against them and feigned the lack of proper service in an attempt to steal a match as against the Plaintiff who is yet to enjoy the fruits of his judgment since the year 2021. It is clear that the Interested Party is guilty of indolence, as they willingly choose not pursue the matter diligently despite being served with court pleadings in the matter herein. As such, a court of equity ought not to come to their aid. Besides, and as a by the way observation, I would have not found meritorious the argument that the Interested Party was unaware of the binding judgment of the Court over the suit land which they gladly charged to themselves illegally. I hold so because judgments of the Court are public documents and the Applicant ought to have been aware of the same at all times. It did not exercise proper due diligence. Carrying out an official search and obtaining a certificate thereto was not the only due diligence that was required of the Interested Party. Had they gone to the ground and inquired of the position of the suit land, they ought to have discovered that indeed the same had been a matter of a protracted suit and that the Plaintiff was actually entitled to possession and ownership. With that I doubt if they would have charged the property unless they formed part of the scheme to dispossess of the Plaintiff his rightful ownership of the land is issue.
32.Since orders of the Court are not issued in vain, the Applicants ought to obey the orders of the Court as issued earlier on in this matter. They have the liberty to charge again the remainder of the property after they have released the portion due to the Plaintiff/ Decree Holder.
33.The upshot of this is that the Application dated March 22, 2023 lack merits and is hereby dismissed.