[2012] KEHC 1354 (KLR)
The court found that the interested party’s advocate was duly served with a hearing notice but failed to attend court. The court had already considered the interested party’s deposition and submissions in the original judgment. There was no sufficient reason to reopen the matter, especially given the age of the case...
Source-derived case information.
- Citation
- [2012] KEHC 1354 (KLR)
- Parties
- Applicant: Josephine Isele Kuluo; Respondent: The Chief Magistrate’s Court Kibera, Nairobi; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 637 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Judgment, Service of Process, Finality of Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Isele Kuluo
Applicant
The Chief Magistrate’s Court Kibera, Nairobi
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment of 9th October 2012 should be set aside for lack of service to the interested party.
- 2 Whether the interested party suffered prejudice due to alleged non-service.
- 3 Whether the interests of justice require reopening the matter.
Ratio Decidendi
The court found that the interested party’s advocate was duly served with a hearing notice but failed to attend court. The court had already considered the interested party’s deposition and submissions in the original judgment. There was no sufficient reason to reopen the matter, especially given the age of the case and the need for finality in litigation. The court also found no prejudice to the interested party, as he retained the right to enforce the repayment agreement independently. Therefore, the application to set aside the judgment was dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 19th October 2012 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JOSEPHINE ISELE KULUO........................................................................ APPLICANT
AND
THE CHIEF MAGISTRATE’S COURTKIBERA, NAIROBI.............1ST RESPONDENT
ATTORNEY GENERAL ...................................................................2ND RESPONDENT
RULING
1. The Notice of Motion dated 19th October 2012 seeks to set aside my judgment of 9th October 2012 on the basis that the interested party was not served and that he did not get a chance to inform the Court that the ex-parte applicant did not repay the funds she had undertaken to pay.
2. I have considered the applicant’s counsel submissions and the supporting affidavit. I am satisfied that the interested party’s advocate was duly served with a hearing notice but failed to attend Court. Nevertheless, the Court had on record the interested party’s deposition and submissions and did consider the issues raised by the interested party in the judgment.
3. I do not think it is the interest of justice to re-open this matter. It was filed over five years ago and as counsel for the respondent stated, litigation must come to an end. I also do not see any prejudice to the interested party as he is at liberty to enforce the agreement between him and the interested party for repayment of his money.
4. The Notice of Motion dated 19th October 2012 is dismissed with no order as to costs.
DATEDandDELIVERED at NAIROBI this 5th day of November 2012
D.S. MAJANJA
JUDGE
Ms Kuria Instructed by R W Kuria & Co. Advocates for the interested party/Applicant
Mr Njogu, litigation counsel instructed by the Director of Public Prosecutions