[2019] KEELC 1115 (KLR)
The court found that justice would be best served by setting aside the ex parte judgment, as the defendants demonstrated that they were not properly served and that they have a defence with triable issues. The court exercised its discretion to allow the defendants to file their defence, statements, and documents...
Source-derived case information.
- Citation
- [2019] KEELC 1115 (KLR)
- Parties
- Plaintiff: Ernest Kipkemboi; Defendant: Jacob Kimutai Kebenei; Defendant: Shadrack Meli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 81 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte judgment set aside
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Process, Defence With Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ernest Kipkemboi
Plaintiff
Jacob Kimutai Kebenei
Defendant
Shadrack Meli
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to lack of proper service.
- 2 Whether the defendants have a defence with triable issues warranting the setting aside of the ex parte judgment.
Ratio Decidendi
The court found that justice would be best served by setting aside the ex parte judgment, as the defendants demonstrated that they were not properly served and that they have a defence with triable issues. The court exercised its discretion to allow the defendants to file their defence, statements, and documents within 14 days, emphasizing the importance of hearing both parties on merit and ensuring fairness in the proceedings.
Court Disposition
application allowed; ex parte judgment set aside
Orders
- The ex parte judgment is set aside.
- The defendants shall file their defence, statements, and documents within 14 days, failing which the order lapses.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO. 81 OF 2017
ERNEST KIPKEMBOI…......................................PLAINTIFF/RESPONDENT
VERSUS
JACOB KIMUTAI KEBENEI........................1ST DEFENDANT/APPLICANT
SHADRACK MELI........................................2ND DEFENDANT/APPLICANT
RULING
This ruling is in respect of an application dated 25th April 2019 brought by way Notice of Motion by the defendant/applicants seeking for setting aside orders of ex parte judgment entered in this matter. The applicants’ claim that they were never served with the summons to enter appearance and that they have a good defence.
The plaintiff is the father of the defendant/applicants and at one point the court had directed that they try an out of court settlement but they were not able to agree. The plaintiff was paid Kshs. 21,725/ being thrown away costs but still wanted to proceed with the current application
I have looked at the application and the circumstances of this case and find that it would be in the interest of justice to set aside the ex parte judgment and allow the defendants to file their defence to state their case. The court has discretion to set aside ex parte judgments if it is established that there was no proper service and if the defendant has a defence with triable issues.
I therefore order that the ex parte judgment is hereby set aside and the defendants to file their defence, statements and documents within 14 days failure of which the order lapses. The plaintiff had already been paid thrown away costs.
Dated and delivered at Eldoret on this 23rd day of October, 2019.
M. A. ODENY
JUDGE
Ruling read in open Court in the presence of Miss Yebei holding brief for Mr. Sambu for Defendants/Applicants and in the presence of the Plaintiff/Respondent.
Court Assistant – Mr. Mwelem