[2013] KEHC 4743 (KLR)
The court found that there was no affidavit of service filed by the process server to prove that the notice of dismissal was served upon the applicant or their counsel. The respondent also failed to demonstrate how they received the notice. The court held that this constituted inadvertence on the part of the court,...
Source-derived case information.
- Citation
- [2013] KEHC 4743 (KLR)
- Parties
- Plaintiff: Edward Wafula Yanda; Defendant: Boaz Musukha Wakhwaku; Defendant: Mark Mufumu Wakhwaku; Defendant: Moses Mwami Wakhwaku
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 72 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside.
- Legal Topics
- Setting Aside Orders, Ex Parte Orders, Service of Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Wafula Yanda
Plaintiff
Boaz Musukha Wakhwaku
Defendant
Mark Mufumu Wakhwaku
Defendant
Moses Mwami Wakhwaku
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the suit should be set aside for lack of service of the notice of dismissal upon the applicant or their counsel.
- 2 Whether the absence of a judge's endorsement on the dismissal order renders it invalid.
- 3 Whether the applicant's counsel's application to cease acting affects the validity of the application to set aside.
Ratio Decidendi
The court found that there was no affidavit of service filed by the process server to prove that the notice of dismissal was served upon the applicant or their counsel. The respondent also failed to demonstrate how they received the notice. The court held that this constituted inadvertence on the part of the court, making the dismissal improper. Additionally, the court clarified that the applicant's counsel remained properly on record as their application to cease acting had not been determined. The absence of a judge's signature on the dismissal order would render it invalid, but if the deputy registrar signed, the order would be valid. Ultimately, the court exercised its discretion to...
Court Disposition
Application allowed; dismissal order set aside.
Orders
- The application is allowed.
- The dismissal order issued by the court on 28th May 2010 is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Civil Case 72 of 2008
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EDWARD WAFULA YANDA......................................................................PLAINTIFF
VERSUS
BOAZ MUSUKHA WAKHWAKU
MARK MUFUMU WAKHWAKU
MOSES MWAMI WAKHWAKU.........................................................DEFENDANTS
RULING
In an application dated 6th December 2011 brought by way of notice of motion, the applicant seeks to set aside the order dismissing their suit issued on 28th May 2010. The dismissal was at the courts instance. They have stated grounds in favour of the application on its face. The gist of it is that the notice of dismissal was never served upon them. Their second limb of the argument is that the order of dismissal was not endorsed by the judge and thus it is invalid.
The respondent is opposed to the application and has filed a replying affidavit. They argue the application has been brought after inordinate delay; no sufficient reasons have been adduced why the orders ought to be set aside and that the notices for dismissing the suit were properly served. The respondent has also submitted that the applicants counsel on record are not interested in prosecuting this matter as they had filed an application to cease acting.
Courts do exercise its discretion in setting aside exparte orders/judgments in order to avoid hardship/injustice where there is excusable mistake or error, inadvertence (Shah vs. Mbogo & another, 1967, E.A. 116 as page 123). There was no affidavit of service filed by the court process server that they actually served the applicants counsel. The respondent does not also indicate how they received the notice of dismissal of suit. It is my finding that this was an inadvertence of the part of the court to have dismissed the suit when there was no proof of service upon the applicant or his counsel. Although the applicant’s counsel sought to cease acting, the application has not been determined therefore they are properly on record to prosecute this application. It is therefore not right/correct submission by the respondent that this can be used against them in determining the application for setting aside.
Finally if the order for dismissal was not signed then there is no order.
However,if the deputy registry signed the order then such order is valid as it the deputy registrar who signs all orders issued by judge on his/her behalf.
I allow the application, set aside the dismissal order issued by the court on 28th May 2010. The costs to abide the outcome of the main suit. The applicant to take necessary steps to set the suit down for hearing.
RULING DATED, SIGNED, READ AND DELIVEREDin open court this 19TH day of MARCH 2013.
A.OMOLLO
JUDGE.