[2015] KEHC 1174 (KLR)
The court found that Wilson Kathurima was not a party to the suit at the time the ex-parte judgment was entered and that there was no fault or negligence on his part in failing to file a memorandum of appearance or defence. The plaintiff, despite being properly served, failed to respond to the application or file...
Source-derived case information.
- Citation
- [2015] KEHC 1174 (KLR)
- Parties
- Plaintiff: John Kaimenyimworia; Defendant: Justus Kathurima; Intended Defendant: Wilson Kathurima
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 125 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment and for Joinder of Intended Defendant
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Ex Parte Judgment, Joinder of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kaimenyimworia
Plaintiff
Justus Kathurima
Defendant
Wilson Kathurima
Intended Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment and for Joinder of Intended Defendant
Legal Issues
- 1 Whether the ex-parte judgment entered on 22nd October 2009 should be set aside.
- 2 Whether Wilson Kathurima should be enjoined as a co-defendant to the suit.
- 3 Whether the applicant had a good defence and was properly served.
Ratio Decidendi
The court found that Wilson Kathurima was not a party to the suit at the time the ex-parte judgment was entered and that there was no fault or negligence on his part in failing to file a memorandum of appearance or defence. The plaintiff, despite being properly served, failed to respond to the application or file submissions. In the interest of justice, and given the applicant's assertion of a good defence, the court exercised its discretion to set aside the ex-parte judgment and all consequential orders. The court also granted the prayer to enjoin Wilson Kathurima as a co-defendant, finding the application meritorious.
Court Disposition
application allowed
Orders
- Ex-parte judgment entered on 22nd October 2009 and all consequential orders are set aside.
- Wilson Kathurima is enjoined as a co-defendant to the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO 125 OF 2009
JOHN KAIMENYIMWORIA ....................................................PLAINTIFF
VERSUS
JUSTUS KATHURIMA …...................................................DEFENDANT
WILSON KATHURIMA................................INTENDED DEFENDANT
R U L I N G
This application is dated 18/10/2010 and seeks orders:
THATthis application be certified urgent and be heard on priority basis on account of its urgency.
THATthis Honourable Court be pleased to enjoin one WILSON KATHURIMA as a Co-defendant to this suit.
THATthis Honourable Court be pleased to set aside the ex-parte judgement entered on 22nd October 2009 together with all consequential orders made pursuant thereto.
THATthe cost of this application be borne by the plaintiff.
The application is buttressed by the affidavit of WILSON KATHURIMA, the applicant and has the following grounds:-
THATthe applicant has a good defence to the plaintiff’s claim.
THATfailure to file the Memorandum of Appearance and defence in the Court file relating to the suit herein was not occasioned by any fault/error or negligence on the part of the applicant, as he was not party.
THATit is only fair just and equitable that this application be allowed in the interest of justice.
The applicant filed his Submissions on 08/04/2014. There is evidence that the Plaintiff was properly served. 5 years after the application was filed and over 1 year and 6 months since the applicant filed his Written Submission, the Plaintiff has not responded by way of his Written Submissions to the issues raised by the application.
In the circumstances, I find that the application is meritorious. Prayer 3 is granted. Costs shall be in the cause.
It is so ordered.
Delivered in open Court at Meru this 2nd day of November, 2015 in the presence of:-
CC:Daniel/Lilian
Carlpeters Mbaabu h/b Mwanzia for Applicant
Dickson Kimathi h/b Mwarania for Plaintiff
P. M. NJOROGE
JUDGE