[2002] KEHC 35 (KLR)
The court found that the service of the hearing notice was questionable as it was effected by a person not licensed to serve court processes at the material time. Additionally, the trial proceeded while an application was pending, and the plaintiff's advocate did not inform the court of this fact. These procedural...
Source-derived case information.
- Citation
- [2002] KEHC 35 (KLR)
- Parties
- Plaintiff: Fidelity Commercial Bank Limited; Defendant: Worldin Tours & Travel Limited; Defendant: Azmina Hernandez Juma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 91 of 1998
- Procedural Posture
- Civil Case / 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, Banker Customer Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelity Commercial Bank Limited
Plaintiff
Worldin Tours & Travel Limited
Defendant
Azmina Hernandez Juma
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to improper service of the hearing notice.
- 2 Whether the pending application at the time of trial affected the validity of the proceedings.
- 3 Whether there existed a banker-customer relationship giving rise to the claim.
Ratio Decidendi
The court found that the service of the hearing notice was questionable as it was effected by a person not licensed to serve court processes at the material time. Additionally, the trial proceeded while an application was pending, and the plaintiff's advocate did not inform the court of this fact. These procedural irregularities justified setting aside the ex parte judgment to allow the defendants an opportunity to be heard on the merits. The court exercised its discretion to set aside the judgment in the interest of justice and directed the parties to prepare the suit for trial within 30 days.
Court Disposition
application allowed; ex parte judgment set aside
Orders
- The ex parte judgment delivered on 6.5.2002 is set aside.
- Parties to prepare the suit for trial and set it down for hearing within 30 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 91 of 1998
FIDELITY COMMERCIAL BANK LIMITED…………......……….………PLAINTIFF
VERSUS
WORLDIN TOURS & TRAVEL LIMITED…………….....…...……..1ST DEFENDANT
AZMINA HERNANDEZ JUMA………………………..…....………2ND DEFENDANT
Coram: J. W. Mwera J.
Ougo for Plaintiff/Respondent
Ahmed for Defendant/Applicant
RULING
The application dated 21. 5.2002 seeks orders under Order 9A rule 10, Order 49 rules 1, 2 and Section 3A Civil Procedure Rules to set aside this court’s judgment which was delivered on 6. 5.2002 after ex parte hearing. There was also a prayer for stay of execution of the resultant decree.
Mr. Ahmedr argued that the trial followed a hearing notice that was served by a person who was not licensed to serve such processes at the time. That the defences filed were strong. That indeed the trial went on when an application dated 25. 2.2002 was pending in court and the plaintiff’s advocate then did not accordingly inform the court and that there was no banker – customer relationship binding the litigants here, giving rise to the banking and accommodation facilities claimed in the plaint.
Mr. Hira posited that if the process server was not licensed, this court should view that in the light of the replying affidavit to this application and issue a ruling.
Having heard both counsel this court is minded to and it sets aside the judgment in question.
Parties should then take course in 30 days to prepare this suit for trial and set it down for hearing at the earliest possible opportunity.
Orders delivered on 8. 11. 2002.
J. W. MWERA
JUDGE