[2010] KEHC 2445 (KLR)

[2010] KEHC 2445 (KLR)

The court found that the defendant was properly served with summons to enter appearance, as evidenced by two affidavits of service on record. The defendant did not take any steps to challenge the affidavits by summoning the process servers for cross-examination. The draft defence attached to the application was found to contain no triable issues and amounted to a mere denial. Consequently, the application to set aside the judgment and for leave to defend out of time lacked merit and was dismissed with costs to the respondent.

Citation
[2010] KEHC 2445 (KLR)
Parties
Plaintiff: Edward Muthee Gitimu; Defendant: Joseph Mathenge Gitimu
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
23 April 2010
Case Number
Civil Case 367 of 1993
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment and for Leave to Defend Out of Time
Outcome
application dismissed with costs to the respondent
Judges
JK Sergon
Legal Topics
Setting Aside Judgment, Service of Process, Default Judgment, Trusts in Land, Leave to Defend
Source Language
English
Civil Procedure Land and Property Setting Aside Judgment Service of Process Default Judgment Trusts in Land Leave to Defend

Case Brief

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Parties

Edward Muthee Gitimu

Plaintiff

Joseph Mathenge Gitimu

Defendant

Procedural Posture

Civil Case / Ruling on Application to Set Aside Judgment and for Leave to Defend Out of Time

Legal Issues

  1. 1 Whether the defendant was properly served with summons to enter appearance.
  2. 2 Whether the judgment entered in default of appearance should be set aside.
  3. 3 Whether the defendant should be granted leave to file a defence out of time.

Ratio Decidendi

The court found that the defendant was properly served with summons to enter appearance, as evidenced by two affidavits of service on record. The defendant did not take any steps to challenge the affidavits by summoning the process servers for cross-examination. The draft defence attached to the application was found to contain no triable issues and amounted to a mere denial. Consequently, the application to set aside the judgment and for leave to defend out of time lacked merit and was dismissed with costs to the respondent.

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application dated 19th June 2009 is dismissed with costs to the respondent.