[2000] KEHC 148 (KLR)
The court found that the defendant's affidavit and the Registrar of Motor Vehicles record raised a probability that the defendant may not be the owner of the vehicle in question. Since this issue could only be conclusively determined at a full hearing, and because the defendant claimed not to have been served with...
Source-derived case information.
- Citation
- [2000] KEHC 148 (KLR)
- Parties
- Plaintiff: Jasvinder Singh Enterprises; Defendant: Philip Ndunda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 707 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Judgment
- Outcome
- application allowed; judgment set aside
- Judges
- JK Mulwa
- Legal Topics
- Setting Aside Judgment, Service of Summons, Fair Hearing, Ownership of Motor Vehicle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jasvinder Singh Enterprises
Plaintiff
Philip Ndunda
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment delivered on 2.11.99 should be set aside due to lack of service of summons on the defendant.
- 2 Whether the defendant was the owner of the vehicle involved in the accident.
Ratio Decidendi
The court found that the defendant's affidavit and the Registrar of Motor Vehicles record raised a probability that the defendant may not be the owner of the vehicle in question. Since this issue could only be conclusively determined at a full hearing, and because the defendant claimed not to have been served with summons, the interests of justice required that the judgment be set aside to allow both parties a fair hearing. The court emphasized that justice can only be seen to be done if both parties are given an opportunity to be heard.
Court Disposition
application allowed; judgment set aside
Orders
- The judgment delivered on 2.11.99 is set aside.
- A date shall be taken for a full hearing.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 707 OF 1999
JASVINDER SINGH ENTERPRISES………………………PLAINTIFF VERSUS PHILIP NDUNDA……………………………………………DEFENDANT
RULING
In this application dated 15. 5.2000 the applicant is asking for the judgment delivered on 2. 11. 99 be set aside. The grounds for the application are that the defendant had not been served with the summons and was therefore not aware of the hearing date.
The application is opposed on the ground that the setting aside the judgment will serve no purpose given that the judgment was properly entered.
In reply to the affidavit, the defendant in paragraphs 5 and 6 swears that he does not own the vehicle, which is supposed to have been involved in the accident. He also says that he was not served wit the summons as alleged in the Return of Service by the Process Server.
The search carried out in Registrar of Motor Vehicles show that the owner of the vehicle KAB 104M is somebody else other than the Defendant.
While I agree with Mr. Oluoch that the records of the vehicle from the registrar of Motor Vehicles is not a conclusive evidence of ownership it must be accepted that such record go along way to determine who the owner would be.
The defendant’s averments in the affidavit in support and the copy of the record from the Registrar of Motor Vehicles raise the probability that the Defendant may not be the owner of the vehicle.
This probability can only be confirmed or dispelled in a hearing. When parties come to court to seek justice under our system, justice can only be seen to have been given if both parties are given a fair hearing. The Defendant is entitled to such a hearing and accordingly the judgment is set aside and a date shall be taken for a full hearing. The costs of this application shall be in course.
Delivered and dated this 21st day of July, 2000.
KASANGA MULWA
JUDGE