Case Metadata |
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| Case Number: | Civil Appeal 59 of 1985 |
|---|---|
| Parties: | Njoroge v Kiarie |
| Date Delivered: | 08 Nov 1988 |
| Case Class: | Civil |
| Court: | Court of Appeal at Nairobi |
| Case Action: | Judgment |
| Judge(s): | Johnson Evan Gicheru, Joseph Raymond Otieno Masime, John Mwangi Gachuhi |
| Citation: | Njoroge v Kiarie[1988] eKLR |
| Case History: | (Appeal from a Ruling and Order of the High Court at Nairobi, Mbaya J) |
| Court Division: | Civil |
| County: | Nairobi |
| History Judges: | William Mbaya |
| Case Summary: | Njoroge v Kiarie Court of Appeal at Nairobi November 8, 1988 Gachuhi, Masime JJA & Gicheru Ag. JA Civil Appeal No 59 of 1985 (Appeal from a Ruling and Order of the High Court at Nairobi, Mbaya J) Civil Practice and Procedure – service of process – where party denies having been served – matters the court should consider in determining such dispute – process server stating that service effected on defendant’s wife - whether proper for court to prefer the statement of process server against the sworn evidence of defendant – Civil Procedure Rules order V rules 12, 16. The appellant/defendant filed an application in the High Court for the setting aside of ex parte judgment which had been entered against him in default of appearance. There was a statement on the court file that summons to enter appearance had been served on the defendant’s wife by a court process server but that no appearance had been entered. The appellant filed two affidavits, one by himself and the other one by his wife both of which denied any service of summons. The judge observed that having studied all the documents relating to the pleadings, he was satisfied that the appellant’s wife had been served with the summons and that he had no reason to believe that the process-server had lied. He therefore refused to set aside the ex parte judgment. The appellant appealed. Held: 1. Under the Civil Procedure Rules order V rule 12, under which the service of summons was said to have been effected, service is made on an agent of the defendant or an adult member of his family residing with him if the defendant cannot be found. The statement of service did not say that the process server could not find the defendant. 2. Under order V rule 16, where one party to the proceedings denies having been served with a relevant document, it is proper for the court to look into the matter and if the court is faced with conflicting affidavits as to the alleged service process, it is proper that the deponents should be examined on oath in order to establish the truth. 3. In this case, there were affidavits of both the defendant and his wife in which they denied service of summons and the court was faced with the unsworn statement of the process server against the affidavits of the appellant. 4. In preferring the evidence of the process server to the affidavits of the appellant, the judge fell into error and it could not be said that he exercised his discretion judicially. Appeal allowed. Cases Karatina Garments Ltd v Nyanarua [1976] KLR 94 Statutes Civil Procedure Rules (cap 21 Sub Leg) order V rules 12,16 |
| History Advocates: | Neither party represented |
| History County: | Nairobi |
| Case Outcome: | Appeal allowed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gachuhi, Masime JJA & Gicheru Ag. JA)
CIVIL APPEAL NO 59 OF 1985
BETWEEN
NJOROGE..........................................................APPELLANT
AND
KIARIE..................................................................RESPONDENT
(Appeal from a Ruling and Order of the High Court at Nairobi, Mbaya J)
JUDGMENT
November 8, 1988 Gachuhi, Masime JJA & Gicheru Ag JA delivered the following Judgment.
On November 3, 1982 HCCC No 3568 of 1981 came before Hancox J (as he then was) for hearing by way of formal proof. It appeared then that the summons to enter appearance had been served upon the defendant’s wife by a court process server but that no appearance had been entered ; a statement to that effect was on the court file. The learned judge enquired why there had not been personal service on the defendant whereupon the plaintiff’s counsel stated from the bar that the defendant had been looked for but not found in Nairobi where he worked for the Post Office; he was therefore looked for at his country residence on the disputed land. The learned judge then recorded:
“Ct. The first attempt was unsuccessful and the plaintiff refused transfer. (sic) Service was good.”
The hearing then proceeded and judgment was entered against the defendant.
When the defendant learned about the ex parte judgment against him he on December 5 1983 filed an application to set aside that judgment. In support of that application the defendant filed two affidavits: one by himself and one by his wife, both of which denied the alleged service of the summons. In his ruling on that application Mbaya J (as he then was) said:
“Having studied all the documents relating to the pleadings and especially the affidavit attached to the return of service, I am satisfied that the applicant’s wife was duly served with summons to enter appearance on April 24, 1982. I have no reason to believe that the process server lied.”
He, therefore dismiss the application to set aside the ex parte judgment with costs. This appeal has been preferred against that decision.
The statement of return of service shows that service is purported to have been effected in pursuance of order V rule 12 which provides:
“12. Where in any suit the defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant who is residing with him.”
The statement of service does not say that the process server could not find the defendant so that for that reason he chose to serve on the defendant’s wife. What is more is that there are affidavits from the defendant and his wife denying such service.
In such a situation order V rule 16 provides:
“16. On any allegation that a summon has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court touching on his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.”
In Karatina Garments Limited v Nyanarua [1976] KLR 94 this court held that where one party to proceedings denies having been served with a relevant document, it is proper for the court to look into the matter, if the court is faced with conflicting affidavits as to the alleged service process, it is proper that the deponents should be examined on oath in order to establish the truth. In the present case the court was faced not with conflicting affidavits but with the unsworn statement of the process server on the one hand and two affidavits of the defendant on the other.
Despite that the learned judge decided to prefer the unsworn statement of the process server to the affidavits of the defendant. In so doing he fell into error and we cannot say that he exercised his discretion judicially.
In the circumstances this appeal succeeds and we set aside the superior court’s order dismissing the application to set aside ex parte judgment.
We substitute therefor an order setting aside the ex parte judgment and giving the appellant 14 days within which to appeal and of the application in the High Court to set aside the judgment. Orders accordingly.
Dated and delivered at Nairobi this 8th day of November, 1988
J.M GACHUHI
..............................
JUDGE OF APPEAL
J.R.O MASIME
..........................
JUDGE OF APPEAL
GICHERU
.........................
Ag. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR
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