[2003] KEHC 927 (KLR)
The court held that although the service of process was irregular and did not fully comply with Order V of the Civil Procedure Rules, the irregularity did not prejudice the other party or offend the basic principles of service. The plaintiff did not file a formal application to set aside the service but instead...
Source-derived case information.
- Citation
- [2003] KEHC 927 (KLR)
- Parties
- Plaintiff: Dubai Drydocks; Defendant: The Owners of Motor Vessel ‘Tilia’
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 17 of 1994
- Procedural Posture
- Admiralty Cause / Ruling on Application for Leave to Appeal
- Outcome
- application for leave to appeal rejected
- Legal Topics
- Service of Process, Preliminary Objection, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dubai Drydocks
Plaintiff
The Owners of Motor Vessel ‘Tilia’
Defendant
Procedural Posture
Admiralty Cause / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the irregular service of process warranted setting aside and a fresh service.
- 2 Whether the failure to file a formal application to set aside service could be cured by raising a preliminary objection.
- 3 Whether there exists a serious or rare point of law justifying leave to appeal.
Ratio Decidendi
The court held that although the service of process was irregular and did not fully comply with Order V of the Civil Procedure Rules, the irregularity did not prejudice the other party or offend the basic principles of service. The plaintiff did not file a formal application to set aside the service but instead raised a preliminary objection, which the court found insufficient to address the issue. Furthermore, the court determined that there was no serious or rare point of law that warranted consideration by the Court of Appeal. As a result, the application for leave to appeal was rejected to prevent unnecessary delay and wastage of judicial time.
Court Disposition
application for leave to appeal rejected
Orders
- The application for leave to appeal is rejected.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASAADMIRALTY CAUSE No. 17 OF 1994
DUBAI DRYDOCKS…..…………………………………....PLAINTIFF
V E R S U S
THE OWNERS OF MOTOR VESSEL ‘TILIA’…………DEFENDANT
R U L I N G
The Plaintiff/Respondent applied for leave to appeal as the kind of order made by this court is one that requires such leave. The leave applied for was opposed by the applicant. I have carefully considered the application. This court found that the service challenged by the Plaintiff by the preliminary objection in the points of law was indeed irregular in that it failed to comply in complete details the procedures provided under Order V of the Civil Procedure Rules. The court however also found the irregularity of the said service did not in any way offend the basic principle for such service in that it did not prejudice the other party. The court finally found that even if the service could be set aside and a fresh one ordered, the plaintiff did not show that it could approach the pending application with any other newer or better grounds than those already on the record. For the above reasons the court concluded that apart from such a course being a cause for more delay it would be a waste of further time. It was also noted that the plaintiff did not file a formal application to set aside the said faulty service but merely attacked it by raising a preliminary objection in points of law, which this court doubted to really have amounted to such preliminary points of law.
It is the view of this court therefore that there is no serious or rare point of law that needs to go for a decision in the Court of Appeal. For these reasons, this application must and is rejected.
Dated and delivered at Mombasa this 3rd day of September, 2003.
D. A. ONYANCHA J U D G E