[1997] KECA 376 (KLR)
The Court found that the only ground advanced for setting aside the judgment was non-service. The High Court was satisfied that service had been effected, and this was conceded by the appellant's advocate. As there was no other valid ground for setting aside the judgment, and no appeal or notice of appeal had been...
Source-derived case information.
- Citation
- [1997] KECA 376 (KLR)
- Parties
- Appellant: Benson Kamau Kareithi; Respondent: Henry Gathu Thande
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 109 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- RO Kwach
- Legal Topics
- Setting Aside Judgment, Service of Process, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kamau Kareithi
Appellant
Henry Gathu Thande
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the judgment entered in terms of an award should be set aside on the ground of non-service.
Ratio Decidendi
The Court found that the only ground advanced for setting aside the judgment was non-service. The High Court was satisfied that service had been effected, and this was conceded by the appellant's advocate. As there was no other valid ground for setting aside the judgment, and no appeal or notice of appeal had been filed against the original judgment, the appeal was without merit and was accordingly dismissed.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, LAKHA, JJ.A. & BOSIRE, AG.J.A.)
CIVIL APPEAL NO. 109 OF 1997
BETWEEN
BENSON KAMAU KAREITHI......................................APPELLANT
AND
HENRY GATHU THANDE........................................RESPONDENT
(Appeal from the Order of the High Court of Kenya at Nairobi (Justice Shield) dated 30th May, 1986 in H.C.C.C. NO. 74 OF 1979) ****************
JUDGMENT OF THE COURT
This is an appeal against the decision of the superior court (Shields, J.) whereby he dismissed an application made on behalf of the appellant to set aside a judgment entered in terms of an award filed and read in Court.
The application was supported by an affidavit of the appellant's then advocate and based solely on the ground of non-service. The learned Judge was satisfied that there was service which when shown to Mr. Kinuthia for the appellant he conceded and, in our view properly, that there was service. This concession disposes of the appeal. It follows that the appeal fails. We may add that we seised of the attack on the judgment entered by Aganyanya , J. against which there is no notice of appeal or any appeal.
For these reason the appeal is dismissed with costs.
Dated and delivered at Nairobi this 6th day of November, 1997.
R.O. KWACH
.............................
JUDGE OF APPEAL
A.A. LAKHA
...........................
JUDGE OF APPEAL
S.E. O. BOSIRE
...................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR