[2017] KEHC 1059 (KLR)
The court found that the central issue was whether the applicant had been properly served with summons in the lower court proceedings. Given the conflicting affidavits and the fact that advocates, rather than the parties themselves, had sworn affidavits on contentious matters, the court determined that the interests...
Source-derived case information.
- Citation
- [2017] KEHC 1059 (KLR)
- Parties
- Applicant: John Gatimu Kiruthai; Respondent: Gareth Powel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 365 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed in part; all proceedings following the filing of the suit set aside; fresh summons to be served; each party to bear own costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Service of Summons, Setting Aside Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gatimu Kiruthai
Applicant
Gareth Powel
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant was properly served with summons to enter appearance in the lower court proceedings.
- 2 Whether the ex parte judgment and subsequent proceedings should be set aside due to alleged lack of service.
- 3 Whether the applicant should be granted leave to file an appeal out of time and a stay of execution.
Ratio Decidendi
The court found that the central issue was whether the applicant had been properly served with summons in the lower court proceedings. Given the conflicting affidavits and the fact that advocates, rather than the parties themselves, had sworn affidavits on contentious matters, the court determined that the interests of justice would best be served by setting aside all proceedings following the filing of the suit. This would allow the dispute to be determined on its merits, with proper service of summons and an opportunity for the applicant to defend the claim. The court exercised its inherent jurisdiction under Sections 1A, 1B, and 3A of the Civil Procedure Act to set aside the ex parte...
Court Disposition
Application allowed in part; all proceedings following the filing of the suit set aside; fresh summons to be served; each party to bear own costs.
Orders
- All proceedings following the filing of the suit by the respondent are set aside.
- The plaintiff in the lower court shall extract summons to enter appearance for service upon the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION 365 OF 2016
JOHN GATIMU KIRUTHAI ………………………………… APPLICANT
VERSUS
GARETH POWEL ………………………………………….RESPODNENT
RULING
By a Notice of Motion dated 11th July, 2016 the applicant seeks substantive orders that there be a stay of execution of the lower court judgment delivered on 22nd November, 2013 and that leave be granted to file appeal out of time. It is supported by an affidavit sworn by an advocate by the name Kariuki Kagunda alongside grounds set out on the face of the application.
The application is opposed and there is a replying affidavit sworn by Mutundu W. Chege also an advocate of the High Court followed by a supplementary affidavit sworn by the applicant. There is also a further affidavit sworn by the same advocate.
I must observe at this stage that the issues herein relate to a relationship between the applicant and the respondent, which both advocates may not have had personal knowledge of. Both parties have filed submissions in addressing the application. For them to swear affidavits in support of or in opposition to the application amounted to delving into the arena of conflict and addressed issues that were not of personal knowledge. This should be discouraged. Both parties have filed submissions in addressing the application.
This application relates to case No. CMCC 5622 of 2013 where the respondent had sued the applicant for recovery of some money amounting to Kshs. 1,900,000/=. The record shows that after service of summons the applicant did not enter appearance and interlocutory judgment was entered against him followed by warrants of attachments.
An application to set aside the said ex parte judgment in the lower court failed hence the filing of this application. The main contention is that the applicant was never served with summons to enter appearance and file a defence.
Having read the record, I believe the ends of justice will be met if all applications following the said ex parte judgment are addressed together with the view to advancing disposal of the disputes. I therefore shall not address the merits or otherwise of the application before me. Instead, applying Sections 1A, 1B and 3A of the Civil Procedure Act, I set aside all proceedings following the filing of the suit by the respondent herein.
The net effect is that the plaintiff in the lower court shall extract summons to enter appearance for service upon the defendant who shall enter an appearance and file a statement of defence within 15 days from the date of service of the summons. In default of filing the appearance and defence as directed above, the plaintiff shall be at liberty to apply for summary judgment. Each party shall bear their own costs occasioned by this application.
Orders accordingly.
Dated, signed and delivered at Nairobi this 15th Day of November, 2017
A. MBOGHOLI MSAGHA
JUDGE