[2012] KEHC 1998 (KLR)

[2012] KEHC 1998 (KLR)

The court found that there was no clear evidence that the defendant was duly and personally served with the hearing notice for 1st November 2010. The process server's affidavit was not sufficiently corroborated, and the attempt at service by registered post was addressed to a different name, which the defendant reasonably did not accept as his. The trial judge who entered the ex parte judgment did not make a finding on whether service had been properly effected. In the absence of clear and satisfactory evidence of personal service, the court exercised its discretion to set aside the ex parte proceedings and judgment to allow the suit to be heard inter partes.

Citation
[2012] KEHC 1998 (KLR)
Parties
Plaintiff: Elijah Gatehi Ndirangu; Defendant: Eustace Gitonga Warutere
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
12 October 2012
Case Number
Civil Case 1166 of 2002
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Outcome
Application allowed. Ex parte proceedings and judgment set aside. Suit to proceed to hearing inter partes.
Judges
DW Mbuteti
Legal Topics
Ex Parte Judgment, Service of Process, Setting Aside Judgment
Source Language
English
Civil Procedure Ex Parte Judgment Service of Process Setting Aside Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

Elijah Gatehi Ndirangu

Plaintiff

Eustace Gitonga Warutere

Defendant

Procedural Posture

Civil Case / Ruling on Application to Set Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether the defendant was duly and personally served with the hearing notice for 1st November 2010 as required by the court's directions.
  2. 2 Whether the ex parte judgment and decree should be set aside for want of proper service.

Ratio Decidendi

The court found that there was no clear evidence that the defendant was duly and personally served with the hearing notice for 1st November 2010. The process server's affidavit was not sufficiently corroborated, and the attempt at service by registered post was addressed to a different name, which the defendant reasonably did not accept as his. The trial judge who entered the ex parte judgment did not make a finding on whether service had been properly effected. In the absence of clear and satisfactory evidence of personal service, the court exercised its discretion to set aside the ex parte proceedings and judgment to allow the suit to be heard inter partes.

Court Disposition

Application allowed. Ex parte proceedings and judgment set aside. Suit to proceed to hearing inter partes.

Orders

  • The defendant's notice of motion dated 16th June 2011 is allowed.
  • The proceedings of 1st November 2010 and the judgment (and decree) entered on 14th December 2010 are set aside.