[2001] KEHC 40 (KLR)
The court found that the defendant/applicant failed to provide any evidence that the court file was missing, as no complaint was made to the Deputy Registrar and no attempt was made to open a skeleton file. The court held that the allegation was an afterthought and not credible. As the application was based on false...
Source-derived case information.
- Citation
- [2001] KEHC 40 (KLR)
- Parties
- Plaintiff: FINA BANK LIMITED; Defendant: MARIRI ENTERPRISES LTD.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1145 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Ex Parte Judgment, Stay of Execution, Court File Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FINA BANK LIMITED
Plaintiff
MARIRI ENTERPRISES LTD.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the ex parte judgment entered on 7.2.2001 should be set aside.
- 2 Whether there should be a stay of execution of the orders issued pursuant to the ex parte judgment.
Ratio Decidendi
The court found that the defendant/applicant failed to provide any evidence that the court file was missing, as no complaint was made to the Deputy Registrar and no attempt was made to open a skeleton file. The court held that the allegation was an afterthought and not credible. As the application was based on false premises, the court dismissed the application to set aside the ex parte judgment and for stay of execution, with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the ex parte judgment entered on 7.2.2001 is dismissed.
- The application for stay of execution is dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 1145 of 2000
FINA BANK LIMITED ………………....................................................……………………. PLAINTIFF
VERSUS
MARIRI ENTERPRISES LTD. ………………….…...............................................…… DEFENDANT
RULING
The defendant/applicant has brought this application under O. IXA Rules 10 and 11, O. XXI Rule 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for orders:-
(a) that the ex parte judgment entered in this matter on 7. 2.2001 be set aside; and
(b) that there be a stay of execution of the orders issued pursuant to the order of 7. 2.2001.
The application is supported by an affidavit sworn on 1. 3.2001 by Mr. Amos Kathuri Mugambi, the applicant’s advocate who claims that he was unable to file a defence because the court file was missing.
There is however no evidence to show that the file ever went missing. In that respect, I note that no complaint was ever made to the Deputy Registrar of this court about the matter prior to the filing of this application and to me the allegation appears to be an afterthought. If indeed it is true that the court file could not be traced, there is a procedure, which Mr. Mugambi should be aware of, of opening a skeleton file so that no party is prejudiced by the failure to trace a particular file. There being no evidence that any report was made about the matter or that any attempt was made to open a skeleton file, which in itself is a very rare occurrence in this court, there is in my view sufficient ground for believing that what Mr. Mugambi states is not true. The application is therefore based on false premises and must therefore fail. It is dismissed with costs.
Dated at Nairobi this 26th day of March, 2001.
T. MBALUTO
JUDGE