[2022] KEHC 2964 (KLR)
The court found that the affidavit of service in this matter was word-for-word identical to that in E433 of 2019, where it had already determined that there was no proper service of summons. As proper service is a prerequisite for entering default judgment, and in the absence of evidence of such service, the default...
Source-derived case information.
- Citation
- [2022] KEHC 2964 (KLR)
- Parties
- Plaintiff: ASL Credit Limited; Applicant: D Manji Constructions Limited; Applicant: D Manji Concrete (K) Limited; Applicant: Devshi Manji Murji Patel; Applicant: Harji Devshi Patel; Applicant: Nahendra Devshi Patel; Applicant: Dipak Harji Patel; Respondent: Prime Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E432 of 2019
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Default Judgment
- Outcome
- Application to set aside default judgment allowed.
- Judges
- EC Mwita
- Legal Topics
- Service of Summons, Default Judgment, Setting Aside Judgment, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
ASL Credit Limited
Plaintiff
D Manji Constructions Limited
Applicant
D Manji Concrete (K) Limited
Applicant
Devshi Manji Murji Patel
Applicant
Harji Devshi Patel
Applicant
Nahendra Devshi Patel
Applicant
Dipak Harji Patel
Applicant
Prime Bank Limited
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether there was proper service of summons to enter appearance on the applicants.
- 2 Whether the default judgment entered on 4th June 2020 should be set aside.
Ratio Decidendi
The court found that the affidavit of service in this matter was word-for-word identical to that in E433 of 2019, where it had already determined that there was no proper service of summons. As proper service is a prerequisite for entering default judgment, and in the absence of evidence of such service, the default judgment entered on 4th June 2020 and all consequential orders must be set aside. The applicants are therefore granted unconditional leave to enter appearance and defend the suit. The objector's application was not considered due to the setting aside of the default judgment, and each party will bear its own costs regarding the objection.
Court Disposition
Application to set aside default judgment allowed.
Orders
- Default judgment entered on 4th June 2020 and all consequential orders are set aside.
- Applicants granted unconditional leave to enter appearance and defend.
Full Case Text
Judgment text and source record
34 paragraphs
ASL Credit Limited v D Manji Constructions Limited & 5 others; Prime Bank Limited (Objector) (Civil Suit E432 of 2019) [2022] KEHC 2964 (KLR) (Commercial and Tax) (10 June 2022) (Ruling)
Neutral citation: [2022] KEHC 2964 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Civil Suit E432 of 2019
EC Mwita, J
June 10, 2022
Between
ASL Credit Limited
Plaintiff
and
D Manji Constructions Limited
1st Applicant
D Manji Concrete (K)Limited
2nd Applicant
Devshi Manji Murji Patel
3rd Applicant
Harji Devshi Patel
4th Applicant
Nahendra Devshi Patel
5th Applicant
Dipak Harji Patel
6th Applicant
and
Prime Bank Limited
Objector
Ruling
1. This court has considered the two applications both dated 15th September 2021, the responses and submissions.
2. As the circumstances of these applications are replayed in E433 of 2019, between the same parties; and whereas the court has found that there was no service or proper service of summons to enter appearance in E433 of 2019, and given that the affidavit of service filed in this matter is similar, (word for word), to that filed in E433 of 2019, the orders and reasons given in E433 of 2019 shall apply to the applications in this file.
3. For avoidance of doubt, the application to set aside the default judgment is allowed. Default judgment entered herein on 4th June 2020 and all consequential orders are set aside and the applicants granted unconditional leave to enter and defend.
4. The applicants shall enter appearance within 15 days from the date of this order and file defences 15 days thereafter. Costs of the application to set aside the default judgment to the applicants.
5. As the objection has not been considered given the result of the application to set aside the default judgment, the objector, (Prime Bank Limited), shall bear own costs of the objection.
DATED SIGNED AND DELIVERED AT NAIROBI THIS 10THDAY OF JUNE 2022E C MWITAJUDGE