[2012] KEHC 3667 (KLR)
The court found that there was no evidence that the defendants or their advocates were served with notice of delivery of the ruling that set aside the ex parte judgment. The record showed the ruling was delivered in the absence of the defendants' counsel, and no indication of service of notice was present in the...
Source-derived case information.
- Citation
- [2012] KEHC 3667 (KLR)
- Parties
- Applicant: Godfrey Mwirigi Mbutura; Applicant: Mary Njeri Mburu; Applicant: Mercy N. Kanyara; Respondent: Sasanet Limited; Respondent: Sasanet Investments Co-operative Society Ltd; Respondent: Bank of India; Respondent: Dubai Bank (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 608 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Reinstate Ex Parte Judgment
- Outcome
- plaintiffs' application dismissed
- Judges
- DK Musinga
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Service of Notice, Filing of Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Mwirigi Mbutura
Applicant
Mary Njeri Mburu
Applicant
Mercy N. Kanyara
Applicant
Sasanet Limited
Respondent
Sasanet Investments Co-operative Society Ltd
Respondent
Bank of India
Respondent
Dubai Bank (K) Limited
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Reinstate Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be reinstated due to the defendants' failure to file a defence within the stipulated period.
- 2 Whether the defendants were properly served with notice of delivery of the ruling setting aside the ex parte judgment.
Ratio Decidendi
The court found that there was no evidence that the defendants or their advocates were served with notice of delivery of the ruling that set aside the ex parte judgment. The record showed the ruling was delivered in the absence of the defendants' counsel, and no indication of service of notice was present in the court file. As a result, the defendants could not be faulted for failing to file their statement of defence within the stipulated period. The plaintiffs' application to reinstate the ex parte judgment was therefore dismissed. The court further directed that all parties comply with pre-trial procedures within 30 days to facilitate a prompt hearing of the matter.
Court Disposition
plaintiffs' application dismissed
Orders
- Plaintiffs' application dated 24th April, 2012 is dismissed.
- Counsel to file respective documents and comply with all pre-trial steps within 30 days from the date hereof.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Suit 608 of 2007
GODFREY MWIRIGI MBUTURA …………………........………… 1 ST PLAINTIFF/APPLICANT
MARY NJERI MBURU …………………………..…..………….... 2ND PLAINTIFF/APPLICANT
MERCY N. KANYARA ……………………………….………….. 3RD PLAINTIFF/APPLICANT
VERSUS
SASANET LIMITED ……………….………………………… 1ST DEFENDANT/RESPONDENT
SASANET INVESTMENTS
CO-OPERATIVE SOCIETY LTD ………..……....…………. 2ND DEFENDANT/RESPONDENT
AND
BANK OF INDIA ……………………………......................……….…………. 1ST GARNISHEE
DUBAI BANK (K) LIMITED ……………….......................……….…..…….. 2ND GARNISHEE
RULING
On 19th March, 2008 the defendants filed an application seeking, inter alia, to set aside the ex parte judgment entered against them in this matter. In a ruling delivered on 25th August, 2010 the court set aside the ex parte judgment and directed that a defence be filed within 15 days from the date of the said ruling. The ruling was delivered by Koome, J. (as she then was), on behalf of Mwilu, J. who had been transferred to another station.
On 2nd May, 2012 the plaintiffs filed an application seeking reinstatement of the ex parte judgment on the ground that the defendants had failed to file any defence. The defendants, through their advocate, Mrs. Gatu Magana, filed a replying affidavit and stated that when they argued their application before Mwilu, J. the judge set the date for delivery of her ruling as 3rd June, 2008. On that day Mrs. Magana travelled from Nakuru where she practices to Nairobi but the ruling was not delivered. She did not receive any notice thereafter of delivery of the ruling and was not aware that the ruling had been delivered until she was served with the plaintiffs’ application. She further stated that the defendants are desirous and keen on defending this suit as they contend that they do not owe any money at all to the plaintiffs. The defendants filed a statement of defence together with their replying affidavit.
Although Ms. Oluoch for the plaintiffs told the court that notice of delivery of the ruling was served upon all the parties, she did not adduce any evidence in support of that contention. I perused the court file and there is no indication that any notice of delivery of the ruling was served upon the defendants’ advocates. The record shows that the ruling was delivered in the absence of the defendants’ counsel.
In the circumstances, the defendants cannot be faulted for having failed to file their statement of defence within the stipulated period of time. Consequently, I dismiss the plaintiffs’ application dated 24th April, 2012. I further direct that counsel do file their respective documents and comply with all pre-trial steps within the next 30 days from the date hereof so that this matter can be heard on priority basis. Mention on 31st July, 2012 with a view to fixing a hearing date.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2012.
D. MUSINGA
JUDGE
In the presence of:
Muriithi – Court Clerk
Mr. Kipngeno for the 2nd Garnishee
No appearance for the Plaintiffs
No appearance for the Defendants
No appearance for 1st Garnishee