[2010] KEHC 634 (KLR)
The court found that interlocutory judgment was entered only against the 3rd and 8th defendants on 11th March, 1999, and not against the 1st defendant, Pashito Holdings Ltd. Therefore, the application by the 1st defendant to set aside an interlocutory judgment allegedly entered against it was misconceived, as no...
Source-derived case information.
- Citation
- [2010] KEHC 634 (KLR)
- Parties
- Plaintiff: James Waiboci; Plaintiff: Eustace Kent Nkombe; Defendant: Pashito Holdings Ltd; Defendant: Shital Bhandari; Defendant: Commissioner of Lands; Defendant: Wilson Gachanja; Defendant: Maywood Limited; Defendant: Mitema Holdings Limited; Defendant: Mova Construction Co. Ltd; Defendant: Director of Surveys
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 921 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application struck out
- Legal Topics
- Interlocutory Judgment, Setting Aside Judgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Waiboci
Plaintiff
Eustace Kent Nkombe
Plaintiff
Pashito Holdings Ltd
Defendant
Shital Bhandari
Defendant
Commissioner of Lands
Defendant
Wilson Gachanja
Defendant
Maywood Limited
Defendant
Mitema Holdings Limited
Defendant
Mova Construction Co. Ltd
Defendant
Director of Surveys
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether interlocutory judgment was entered against the 1st defendant and if so, whether it should be set aside.
- 2 Whether the 1st defendant was properly served with the plaint.
Ratio Decidendi
The court found that interlocutory judgment was entered only against the 3rd and 8th defendants on 11th March, 1999, and not against the 1st defendant, Pashito Holdings Ltd. Therefore, the application by the 1st defendant to set aside an interlocutory judgment allegedly entered against it was misconceived, as no such judgment existed against it. The absence of a response from the plaintiffs or the Attorney General did not alter this fact. The court accordingly struck out the application as it sought to set aside a judgment that was never entered against the applicant.
Court Disposition
application struck out
Orders
- The application dated 21st May, 2010 by the 1st defendant is struck out.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI LAND AND ENVIRONMENTAL LAW DIVISION CIVIL SUIT NO.921 OF 1998
JAMES WAIBOCI…..………………………………..1ST PLAINTIFF EUSTACE KENT NKOMBE……….……………….2ND PLAINTIFF VERSUS PASHITO HOLDINGS LTD……………………....1ST DEFENDANT SHITAL BHANDARI…….………………………..2ND DEFENDANT COMMISSIONER OF LANDS…………………...3RD DEFENDANT WILSON GACHANJA………………..………….4TH DEFENDANT MAYWOOD LIMITED……………………...……5TH DEFENDANT MITEMA HOLDINGS LIMITED………...………..6TH DEFENDANT MOVA CONSTRUCTION CO. LTD…………….7TH DEFENDANT DIRECTOR OF SURVEYS……………...…….…8TH DEFENDANT
R U L I N G
1. By a notice of motion dated 21st May, 2010, Pashito Holdings Limited, who is the 1st defendant in this case, seeks to have the ex parte interlocutory judgment dated 11th march, 1999, entered against him set aside. The applicant contends that he was never served with the plaint. He maintains that he is the legal owner of the six plots which were subject of the suit and that the plaintiffs have no claim or legal basis against him. The applicant has annexed copies of certificate of lease in its name for the suit properties.
2. Although the plaintiffs/respondents were duly served with the application, they neither filed a response nor attended court for the hearing of the application, nor did the Attorney General who was also served. Hearing of the application therefore proceeded ex parte.
3. I have considered the application before me. I have also carefully perused the court record. I do note that on 11th March, 1999, interlocutory judgment was entered against the 3rd and 8th defendants only. No interlocutory judgment was entered against the 1st defendant. Therefore the application before me is misconceived, as the applicant seeks to set aside a wrong judgment.
4. Accordingly, I strike out the application.
Dated and delivered this 16th day of November, 2010
H. M. OKWENGU JUDGE
In the presence of: - Advocate for the plaintiffs absent Owuor for the 1st defendant B. Kosgei - Court clerk