True Vine Supplies Lmited v Tyre Express (U) Limited (Miscellaneous Application No. 923 of 2025)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The High Court Commercial Division granted the applicant leave to file a written statement of defence out of time. The court found that ineffective substituted service constituted sufficient cause for the failure to file within the prescribed period. The applicant discovered the suit through a newspaper notice shared by a friend and had never been properly served with summons. The court held that matters should be heard on their merits and that the absence of an affidavit of service on the court record supported the finding of ineffective service.

Outcome

Application granted; applicant given leave to file defence out of time

Facts

The applicant company, through its director Mr. Longa Godfrey, learned of Civil Suit No. 1369/2024 filed against it by the respondent only on 25 April 2025 when a friend shared a newspaper notice. The applicant instructed lawyers to investigate and discovered that the respondent had filed the suit in 2024 and that summons had been issued three times. The applicant averred that neither the director nor the company had ever been served with summons. Upon discovering the suit, the applicant instructed lawyers to file a defence but was informed the time had lapsed. The applicant then filed this application seeking leave to file a defence out of time. The respondent did not file any affidavit in reply and neither appeared nor was represented at the hearing despite being served.

Issues

1. Whether the applicant has sufficient cause to warrant the grant of an application for leave to file its written statement of defence out of time.
2. What remedies are available to the parties.

Orders

• Application granted.
• The applicant shall file its written statement of defence within 15 days from the date of this ruling.
• The respondent shall file its response to the defence within 15 days from the date of service.
• The costs of this application shall be provided for in the cause.

Rules and key headnotes

Legislation cited (10)

• Civil Procedure Act Cap 282 s.96
• Civil Procedure Act Cap 282 s.98
• Civil Procedure Rules SI 71-1 Order 52 rule 1
• Civil Procedure Rules SI 71-1 Order 8 rule 1(1)
• Civil Procedure Rules SI 71-1 Order 8 rule 1(2)
• Civil Procedure Rules SI 71-1 Order 51 rule 6
• Civil Procedure Rules SI 71-1 Order 9 rule 20
• Civil Procedure Rules SI 71-1 Order 9 rule 20(1)(a)
• Civil Procedure Rules SI 71-1 Order 5 rule 16
• Civil Procedure Rules SI 71-1 Order 5 rule 18(1)

Cases cited (5)

• Sentamu Moses and Another v Kenanansi Jackline (Miscellaneous Application No. 681 of 2020)
• William Odoi Nyandusi v Jackson Oyuko Kasendi (Court of Appeal Civil Application No. 32 of 2018)
• Philip Ongom v Catherine Nyero Owoto (Civil Appeal No. 14 of 2001)
• Hajati Safina Nababi v Yafesi Lule (Civil Appeal No. 9 of 1998)
• M/s Semuyaba, Iga & Co. Advocates and Another v Attorney General and 2 Others (Miscellaneous Application No. 4 of 2022)

The original judgment as reported. Read the original PDF before relying on any passage.