Sainaghi T/A Enterprise Panel Beaters v Kasuku
The bottom line
#A Kenyan court cannot rely on an unsworn return of service to deny someone a hearing; disputed service must be tested with evidence from the process server.
What this practically means
#Executive summary
#Key legal issues
#Treatment of unsworn return of service
The trial judge misdirected himself by relying on an unsworn return of service as if it were a sworn affidavit.
The return of service was filed by a law clerk and was not sworn. The judge heavily relied on it in dismissing the application to set aside the ex-parte judgment. Treating an unsworn document as an affidavit was a misdirection, particularly where the signature of the person served was disputed on affidavit.
Duty to inquire into disputed service
Where service is challenged by sworn affidavit, the court must record evidence of the process server and the applicant to resolve the conflict before dismissing the application.
Following Karatina Garments Ltd v Nyanarua, the court held that where a respondent denies service, the court should inquire into the matter and, in the face of conflicting affidavits, examine the deponents on oath to ascertain the truth. The judge's failure to call the process server was an error warranting reversal.
Leave to defend
The appellant, having filed a draft defence with counter-claim, was entitled to unconditional leave to defend.
The appellant's original application included a defence and counter-claim, seeking leave to defend. Leave could be conditional or unconditional; on the facts the court held unconditional leave appropriate, with the draft defence and counter-claim taken as filed on payment of court fees.
Legal principles established
#- Where service of summons and the signature of the person served are disputed on sworn affidavit, the court must inquire into service and take evidence, including examining the process server, before dismissing an application to set aside an ex-parte judgment.
- An unsworn return of service cannot be treated as a sworn affidavit.
Court orders
#- 1.Appeal allowed with costs
- 2.Ex parte judgment of the High Court set aside
- 3.Defence and counter-claim already on record to be taken as validly filed on payment of the necessary fees
- 4.Appellant to have the cost of his application in the High Court
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- First appellate jurisdiction over High Court rulings (Civil Procedure; appeal from ruling and order of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sainaghi T/A Enterprise Panel Beaters v Kasuku", Case Analysis (1988). Civil Appeal No 88 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/140/eng@1988-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.