[2022] KEHC 138 (KLR)
The court found that the 1st Defendant, a government ministry, had been properly served with summons to enter appearance as evidenced by the process server's affidavit and the ministry's stamp on the summons. However, under Order 10 Rule 8 of the Civil Procedure Rules, no judgment in default of appearance or...
Source-derived case information.
- Citation
- [2022] KEHC 138 (KLR)
- Parties
- Plaintiff: Isaac Wanjohi Gathungu; Plaintiff: Isabella Nyaguthii Wanjohi; Defendant: Ministry of Lands & Physical Planning; Defendant: National Land Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case E817 of 2021
- Procedural Posture
- Commercial Civil Case / Ruling on Application for Default Judgment
- Outcome
- Application for default judgment against the 1st Defendant allowed.
- Judges
- JN Mulwa
- Legal Topics
- Default Judgment, Service of Process, Government Parties, Leave of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Wanjohi Gathungu
Plaintiff
Isabella Nyaguthii Wanjohi
Plaintiff
Ministry of Lands & Physical Planning
Defendant
National Land Commission
Defendant
Procedural Posture
Commercial Civil Case / Ruling on Application for Default Judgment
Legal Issues
- 1 Whether judgment can be entered against a government ministry in default of appearance or defence without leave of court.
- 2 Whether proper service of summons was effected upon the 1st Defendant.
Ratio Decidendi
The court found that the 1st Defendant, a government ministry, had been properly served with summons to enter appearance as evidenced by the process server's affidavit and the ministry's stamp on the summons. However, under Order 10 Rule 8 of the Civil Procedure Rules, no judgment in default of appearance or pleading may be entered against the Government without leave of the court. The applicant complied with the procedural requirements, and the court was satisfied that proper service had been effected. Consequently, the court granted leave and allowed the application for default judgment against the 1st Defendant.
Court Disposition
Application for default judgment against the 1st Defendant allowed.
Orders
- Prayer No. 1 of the application dated 29/10/2021 is allowed.
Full Case Text
Judgment text and source record
25 paragraphs
Gathungu & another v Ministry of Lands & Physical Planning & another (Commercial Civil Case E817 of 2021) [2022] KEHC 138 (KLR) (Commercial and Tax) (27 January 2022) (Ruling)
Neutral citation number: [2022] KEHC 138 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial Civil Case E817 of 2021
JN Mulwa, J
January 27, 2022
Between
Isaac Wanjohi Gathungu
1st Plaintiff
Isabella Nyaguthii Wanjohi
2nd Plaintiff
and
Ministry of Lands & Physical Planning
1st Defendant
National Land Commission
2nd Defendant
Ruling
1. The Applicant, by their Notice of Motion application dated 29/10/2021 seeks that Judgment be entered against the 1st Defendant, Ministry of Lands and Physical Planning for failure to enter appearance and/or file a defence despite having been served with summons to enter appearance as by the law provided – Order 5 Rule 9 of the Civil Procedure Rules 2010 (CPR).
2. The 1st Defendant is a Government Ministry. For judgment to be entered against a government body in default of appearance or defence, leave must be obtained from the court.
3. Order 10 Rule 8 of Civil Procedure Rules states:“No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return date”
4. In the Supporting Affidavit sworn by the process server, one Loise Njoroge, she served sermons to enter appearance to both defendants on the 6/10/2021. They both signed and stamped at the face of the summons, to signify service upon them, by their legal officers.
5. I am satisfied that proper service was thus effected upon the 1st Defendant at its offices situated at Ardhi House, off Ngong Road Nairobi. The 1st Defendants stamp is appended at the face of the summons and dated 6/10/2021.
6. On the above basis, I allow prayer No. 1 of the application dated 29/10/2021.
DATED AND SIGNED THIS 27THDAY OF JANUARY 2022HON. J. N. MULWAJUDGE