Bank of Africa Limited v Set Light Supermarket Limited & 4 others [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division
Category
Civil
Judge(s)
F. Tuiyott
Judgment Date
October 05, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2

Case Brief: Bank of Africa Limited v Set Light Supermarket Limited & 4 others [2020] eKLR


1. Case Information:
- Name of the Case: Bank of Africa Limited v. Set Light Supermarket Limited & Others
- Case Number: HCCC No. 156 of 2016
- Court: High Court of Kenya at Nairobi, Milimani Law Courts, Commercial & Tax Division
- Date Delivered: October 5, 2020
- Category of Law: Civil
- Judge(s): F. Tuiyott
- Country: Kenya

2. Questions Presented:
The central legal issue in this case revolves around whether the ex parte judgment entered against the defendants can be set aside due to improper service of process, specifically concerning the adequacy of substituted service as opposed to personal service.

3. Facts of the Case:
The plaintiff, Bank of Africa Limited, filed a case against Set Light Supermarket Limited and four individuals (Francis Kihiko Njuguna, Isaac Mwangi Njuguna, David Macharia Njuguna, and Simon Gashwe Njuguna) as defendants. The plaintiff sought to serve the defendants through substituted service after failing to effect personal service. The court allowed this on October 12, 2016, permitting service via registered post and an advertisement in the Daily Nation newspaper. An ex parte judgment was entered against the defendants on March 14, 2017, based on an affidavit of service claiming that the defendants were properly served.

4. Procedural History:
Following the ex parte judgment, the defendants filed a Notice of Motion on December 10, 2019, seeking to set aside the judgment. They argued that they were not properly served and provided evidence of their inability to receive the documents. The court considered the affidavits submitted by both parties regarding service efforts, particularly scrutinizing the efforts made by the process server.

5. Analysis:
- Rules: The court examined the rules governing service of process, emphasizing that personal service is preferred and that substituted service is only permissible when reasonable efforts for personal service have failed (Civil Procedure Rules).
- Case Law: The court referenced prior cases that dealt with the principles of service of process and the necessity of demonstrating diligent efforts before resorting to substituted service. These precedents underscored the importance of ensuring defendants are adequately notified of legal proceedings against them.
- Application: The court concluded that the initial process server did not make sufficient efforts to locate and serve the defendants personally, as evidenced by the successful service of the Notice to Show Cause (NTSC) by a different process server. The discrepancies in the service efforts led the court to determine that the ex parte judgment was improperly obtained.

6. Conclusion:
The court ruled in favor of the defendants, allowing the motion to set aside the ex parte judgment. The judgment was overturned due to improper service, emphasizing the necessity of personal service. The defendants were ordered to file and serve their Statements of Defence within 14 days. This ruling reinforces the principle that defendants must be properly notified of legal actions against them to ensure fairness in legal proceedings.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya set aside the ex parte judgment against the defendants in Bank of Africa Limited v. Set Light Supermarket Limited due to improper service of process. The decision highlights the importance of personal service and the need for plaintiffs to demonstrate diligent efforts in serving defendants. The ruling has broader implications for civil procedure, emphasizing the protection of defendants' rights to be adequately informed of legal actions.

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