[2008] KEHC 2449 (KLR)
The court held that the application to vacate the order requiring production of the process-server was misconceived. The appropriate course is to fix the pending application to set aside judgment for hearing. If the process-server cannot be produced at the hearing, the judge then seized of the matter will be...
Source-derived case information.
- Citation
- [2008] KEHC 2449 (KLR)
- Parties
- Plaintiff: Julius Kuria Kieru; Defendant: Gilbert Gichagua Gitachu; Defendant: D.W Kiiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5060 of 1987
- Procedural Posture
- Civil Case / Ruling on Application to Vacate Prior Order Regarding Production of Process Server
- Outcome
- application struck out
- Judges
- DW Mbuteti
- Legal Topics
- Setting Aside Judgment, Service of Process, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kuria Kieru
Plaintiff
Gilbert Gichagua Gitachu
Defendant
D.W Kiiru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Vacate Prior Order Regarding Production of Process Server
Legal Issues
- 1 Whether the order requiring production of the process-server for cross-examination should be vacated due to inability to locate the process-server.
- 2 Whether failure to produce the process-server should indefinitely delay the hearing of the application to set aside judgment.
Ratio Decidendi
The court held that the application to vacate the order requiring production of the process-server was misconceived. The appropriate course is to fix the pending application to set aside judgment for hearing. If the process-server cannot be produced at the hearing, the judge then seized of the matter will be informed and will determine how to proceed. The inability to produce the process-server should not indefinitely delay the hearing of the application to set aside judgment. The court struck out the application and directed that the substantive application be fixed for hearing on a priority basis.
Court Disposition
application struck out
Orders
- The application by notice of motion dated 19th October, 2007 is struck out with no order as to costs.
- The application by chamber summons dated 15th September, 1995 shall be fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 5060 of 1987
JULIUS KURIA KIERU …………………………………… PLAINTIFF
V E R S U S
1. GILBERT GICHAGUA GITACHU
2. D.W KIIRU ……………………………..……………DEFENDANTS
R U L I N G
The suit herein is very old; it was filed in 1987. Interlocutory judgment was entered against the Defendants for want of appearance and defence. Final judgement was entered against them, apparently on 6th August, 1992. An application to set aside that judgement was made by chamber summons dated and filed on 15th September, 1995. That application has, nearly thirteen (13) years later, not been disposed of. In the meantime, one of the Defendants has died.
On 15th June, 2000 the court (Aluoch, J, as she then was) ordered in effect that the process-server who served the Defendants with summons to enter appearance and copy of the plaint be produced at the hearing of the application for purposes of cross-examination, the dispute in the application being whether or not there was such service.
The Plaintiff has now applied by notice of motion dated 19th October, 2007 for an order to vacate the aforesaid order of 15th June, 2000 upon the ground that the process-server cannot be found. The application is opposed by the surviving Defendant.
I have read the supporting and replying affidavits. I have also given due consideration to the submissions of the learned counsels appearing. In my view the present application is unnecessary. What ought to be done is to fix for hearing the application by chamber summons dated 15th September, 1995. If the process server cannot be produced at the hearing, the Judge then seized of the matter will be so informed and reasons for failure to produce given. It will then be upon that Judge to determine and direct how to proceed. I hazard the opinion that failure to produce the process-server, for whatever reason, should not be allowed to hold the application to set aside judgment in abeyance indefinitely. But it will be entirely upon the Judge seized of the matter when the application comes up for hearing.
I therefore hold that the application by notice of motion dated 19th October, 2007 is misconceived. It is hereby struck out with no order as to costs. I further direct that that application by chamber summons dated 15th September, 1995 be fixed for hearing on priority basis. Those will be the orders of the court.
DATED AT NAIROBI THIS …………DAY OF JUNE 2008.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 6TH DAY OF JUNE 2008.