[2003] KEHC 729 (KLR)
The court found that the defendant's advocates were properly served with the hearing notice, as evidenced by the process server's affidavit and the acknowledgment of service by the legal clerk. The defendant did not provide a satisfactory explanation for his failure to attend the hearing, nor did he demonstrate that...
Source-derived case information.
- Citation
- [2003] KEHC 729 (KLR)
- Parties
- Plaintiff: General Insurance Company Limited; Defendant: John Kiprop Chemetoi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 120 of 2000
- Procedural Posture
- Chamber Summons / Ruling on Application to Set Aside Ex Parte Judgment and for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Ex Parte Judgment, Service of Process, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
General Insurance Company Limited
Plaintiff
John Kiprop Chemetoi
Defendant
Procedural Posture
Chamber Summons / Ruling on Application to Set Aside Ex Parte Judgment and for Stay of Execution
Legal Issues
- 1 Whether the defendant was properly served with the hearing notice before ex parte judgment was entered.
- 2 Whether the ex parte judgment should be set aside under Order 9B Rule 8 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant's advocates were properly served with the hearing notice, as evidenced by the process server's affidavit and the acknowledgment of service by the legal clerk. The defendant did not provide a satisfactory explanation for his failure to attend the hearing, nor did he demonstrate that his absence was due to accident, inadvertence, or excusable mistake. The court held that the requirements for setting aside the ex parte judgment were not met, and the application was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the ex parte judgment and for stay of execution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO.120 OF 2000
GENERAL INSURANCE COMPANY LIMITED..............PLAINTIFF
V E R S U S
JOHN KIPROP CHEMETOI....................................DEFENDANT
R U L I N G
This is Chamber Summons dated 24. 1.2003 made under Order 21 Rule 22, Order 9B Rule 10 and Section 3A of Civil Procedure Rules and Act respectively, asking for a stay of execution pending application to set aside exparte judgement and that exparte judgement entered on 28. 4.02 be set aside. The main reasons contained in the supporting affidavit of JOHN K. CHEMEITOI sworn on 24. 1.2003 is that because the opposite party kept on serving Ms Kipkenda Lilan & Company Advocates with Court documents on behalf of the Applicant the information did not reach the party who by then had replaced the said advocates; hence the proceedings were conducted without the Applicant participating, but the Respondent opposes this application through the affidavit of KELVIN MOGENI sworn on 28. 2.2003 stating that he was not served with the Notice of Change but got informed by the previous advocates and thereafter he never served the firm of Kipkenda Lilan & Company but dealt with M/s Wachakana & Company Advocates who he served with hearing notice dated 15. 11. 2001 on 9. 1.2002
The question is whether the Applicant was served. The process server Samuel Githui Karingi depones that he served the legal clerk on 9. 1.2002 but this was about 60 days later after the notice had been prepared and signed on 15. 11. 01. It is curious why it took so long to have it dispatched to the opposite party. Further, there is exhibited the copy of notice of hearing upon which the said legal clerk, “acknowledged service and endorsed his signature and stamp” as is stated by the process server. This is prima-facie evidence of service. The objective of notice of hearing is to inform the opposite party of the hearing date before that time, but I am not so sure if service on a legal clerk in the firm was due service. Was the clerk duly authorized to accept service on behalf of the firm? Normally, in legal practice, law clerks do accept service on behalf of their firms and this is a practice very much in existence. Setting aside exparte judgement is provided under Order 9B Rule 8 and the principle is as was laid by Harris J., in SHAH vs.MBOGO 1967 EA 116where he said that “it is a discretionary jurisdiction exercised not to aid a person deliberately trying to delay the hearing by evasion or otherwise but to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake”.
If the Applicant was indeed served why did he not attend the hearing? His omission to attend can only be excused if it was caused by accident, inadvertence or excusable mistake. He has not said so. Instead he denies total knowledge and no service.
I have considered the arguments here and I feel the Applicant had an earlier knowledge of the hearing but did not attend. I therefore, dismiss the application with costs.
DATED and DELIVERED at Nairobi this 23rd day of May 2003
A.I. HAYANGA
JUDGE
Read to -
Mr. Nduna for Plaintiff
No appearance for Respondent
A.I. HAYANGA
JUDGE