[2023] KEHC 24121 (KLR)
The court found that the appellant had raised a triable issue, as the respondent was a passenger in another vehicle involved in the collision and the appellant's vehicle was not sued. The court held that, despite proper service, the existence of a triable defence necessitated setting aside the interlocutory judgment...
Source-derived case information.
- Citation
- [2023] KEHC 24121 (KLR)
- Parties
- Appellant: Equitorial Nuts Processors; Respondent: Charles Mwangi Gichimu (Suing as the legal representative of the Estate of David Mwangi Gichimu)
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Case 26 of 2020
- Procedural Posture
- Civil Case / Appeal Judgment
- Outcome
- Appeal allowed. Interlocutory judgment set aside. Matter remitted for trial.
- Judges
- J Wakiaga
- Legal Topics
- Interlocutory Judgment, Setting Aside Judgment, Triable Issues, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Equitorial Nuts Processors
Appellant
Charles Mwangi Gichimu (Suing as the legal representative of the Estate of David Mwangi Gichimu)
Respondent
Procedural Posture
Civil Case / Appeal Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the appellant should be set aside.
- 2 Whether the appellant has raised a triable issue warranting a full trial.
- 3 Whether service of process on the appellant was proper.
Ratio Decidendi
The court found that the appellant had raised a triable issue, as the respondent was a passenger in another vehicle involved in the collision and the appellant's vehicle was not sued. The court held that, despite proper service, the existence of a triable defence necessitated setting aside the interlocutory judgment to allow the matter to be determined on its merits at a full trial. The court further ordered that the security deposited be maintained and that the matter be mentioned before the Chief Magistrate for directions on priority disposal.
Court Disposition
Appeal allowed. Interlocutory judgment set aside. Matter remitted for trial.
Orders
- The appeal is allowed.
- The interlocutory judgment entered against the appellant is set aside.
Full Case Text
Judgment text and source record
21 paragraphs
Equitorial Nuts Processors v Gichimu (Suing as the legal representative of the Estate of David Mwangi Gichimu) (Civil Case 26 of 2020) [2023] KEHC 24121 (KLR) (11 October 2023) (Judgment)
Neutral citation: [2023] KEHC 24121 (KLR)
Republic of Kenya
In the High Court at Murang'a
Civil Case 26 of 2020
J Wakiaga, J
October 11, 2023
Between
Equitorial Nuts Processors
Appellant
and
Charles Mwangi Gichimu
Respondent
Suing as the legal representative of the Estate of David Mwangi Gichimu
Judgment
1. Since the Respondent was a passenger in another motor vehicle which collided with the Appellant’s motor vehicle, which was not sued, I find that there is a triable issue that ought to be determined by way of full trial.
2. Whereas the service was proper, where the Appellant has put up on triable defence, it is trite that the same should be considered.
3. I therefore allow the appeal herein and set aside the interlocutory judgment entered against the Appellant and since the service has been considered proper, the Appellant shall pay to the Respondent cost of Kshs.50,000/=.
4. The security deposited herein shall be maintained pending the hearing and determination of the suit before another magistrate rather than the trial Court.
5. The Lower Court matter to be mentioned before the Chief Magistrate on 21/11/2023 for direction on its disposal on priority basis.
DATED, SIGNED AND DELIVERED THIS 11th DAY OF OCTOBER, 2023J WAKIAGAJUDGE11/10/2023