[2010] KEHC 95 (KLR)
The court found that no Notice of Intention to sue, as required by section 13A(1) of the Government Proceedings Act, had been served or filed. The mere reminder letter to the Attorney General regarding the absence of a defence and the plaintiff's intention to seek judgment did not satisfy the statutory requirement....
Source-derived case information.
- Citation
- [2010] KEHC 95 (KLR)
- Parties
- Plaintiff: Fleet Wood Enterprises Limited; Defendant: John Ngata Kariuki; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 123 of 2009
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons for Default Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Default Judgment, Government Proceedings, Notice of Intention to Sue
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fleet Wood Enterprises Limited
Plaintiff
John Ngata Kariuki
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Default Judgment
Legal Issues
- 1 Whether judgment can be entered against the Attorney General in default of defence without service of a Notice of Intention to sue as required by law.
Ratio Decidendi
The court found that no Notice of Intention to sue, as required by section 13A(1) of the Government Proceedings Act, had been served or filed. The mere reminder letter to the Attorney General regarding the absence of a defence and the plaintiff's intention to seek judgment did not satisfy the statutory requirement. Since compliance with the notice provision is a mandatory precondition for instituting proceedings against the Government, the application for default judgment could not be granted. The absence of the notice was fatal to the plaintiff's application, leading to its dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons application for default judgment is dismissed with costs.
- Registry to notify parties that judgment has been delivered.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT NO. 123 OF 2009
FLEET WOOD ENTERPRISES LIMITED ………PLAINTIFF
VERSUS
JOHN NGATA KARIUKI………………………..…DEFENDANT
THE ATTORNEY GENERAL……………………..DEFENDANT
RULING
The Chamber Summons application is dated 9th August 2010 seeking leave for judgment to be entered against the Attorney General in default of filing defence within the prescribed time.
The application is made under order IXA Rule 7 and 11 Civil Procedure Rules. While the application is brought under the current provisions, and indeed the Attorney General entered appearance I pause to ask, was there a Notice of Intention to sue served and filed? I have gone through the court records and find none.
The provisions under the Government proceedings Act section 13 (A) (1) requires that notice of intention to sue in writing, must be served on the Government and the proceedings shall not be instituted until after the expiry of a period of thirty days. The notice is in a format set out in Third schedule of Cap 40.
All that I see is a letter reminding Attorney General that no defence has been filed and plaintiff’s intent to apply for entry of judgment after a lapse of 14 days. That is not the same as a Notice of Intention to sue which ought to be served on the.
For this reason the, I decline to grant the prayers sought.
The application is dismissed with costs
Delivered and dated this 15th day of December 2010 at Malindi
H. A. OMONDI
JUDGE
Delivered in absence of parties
Registry to notify parties that judgment has been delivered.