[2014] KEHC 22 (KLR)

[2014] KEHC 22 (KLR)

The High Court found that the trial magistrate erred in holding that service of summons was proper, as there were two possible addresses for the 2nd appellant and no evidence that the address used was the one most likely to reach him. The possibility that summons were sent to the wrong address could not be ruled out, making service irregular. Furthermore, the procedural defect in the appellants' application (use of chamber summons under repealed rules) was not fatal, as the court had power under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution to dispense justice without undue regard to technicalities. The defence raised a triable issue of contributory...

Citation
[2014] KEHC 22 (KLR)
Parties
Appellant: John Waruita Wakibia; Appellant: Samuel Wanjui Gitonga; Respondent: Dalmas Pose Kileyia
Court
High Court
Court Station
High Court at Nakuru
Jurisdiction
Kenya
Judgment Date
7 October 2014
Case Number
Civil Appeal 20 of 2011
Procedural Posture
Civil Appeal / Ruling on Appeal Against Refusal to Set Aside Ex Parte Judgment
Outcome
Appeal allowed; ex parte judgment set aside.
Judges
DO Ohungo
Legal Topics
Setting Aside Ex Parte Judgment, Service of Process, Contributory Negligence, Judicial Discretion
Source Language
English
Civil Procedure Tort Law Setting Aside Ex Parte Judgment Service of Process Contributory Negligence Judicial Discretion

Case Brief

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Parties

John Waruita Wakibia

Appellant

Samuel Wanjui Gitonga

Appellant

Dalmas Pose Kileyia

Respondent

Procedural Posture

Civil Appeal / Ruling on Appeal Against Refusal to Set Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether the trial magistrate erred in refusing to set aside the ex parte judgment against the appellants.
  2. 2 Whether service of summons to enter appearance was proper and in accordance with the Civil Procedure Rules.
  3. 3 Whether the appellants' defence raised triable issues warranting a hearing on the merits.

Ratio Decidendi

The High Court found that the trial magistrate erred in holding that service of summons was proper, as there were two possible addresses for the 2nd appellant and no evidence that the address used was the one most likely to reach him. The possibility that summons were sent to the wrong address could not be ruled out, making service irregular. Furthermore, the procedural defect in the appellants' application (use of chamber summons under repealed rules) was not fatal, as the court had power under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution to dispense justice without undue regard to technicalities. The defence raised a triable issue of contributory...

Court Disposition

Appeal allowed; ex parte judgment set aside.

Orders

  • The ex parte judgment entered by the trial magistrate is set aside.
  • The costs of the appeal shall be borne by the respondent.