[2014] KEHC 4409 (KLR)
The court found that the applicant was properly served with the summons, plaint, and hearing notice, as evidenced by the respondent's affidavit and supporting documents, including a letter from the applicant referencing the suit. The applicant's denial of service was found to be untruthful and unsupported by the...
Source-derived case information.
- Citation
- [2014] KEHC 4409 (KLR)
- Parties
- Plaintiff: Juma Abdalla Vitu; Defendant: Kwale Water and Sewerage Co. Ltd.; Applicant: Kwale Water and Sewerage Co. Ltd.; Respondent: Juma Abdalla Vitu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 124 of 2012
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Judgment and Stay Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- SN Mukunya
- Legal Topics
- Service of Process, Setting Aside Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Abdalla Vitu
Plaintiff
Kwale Water and Sewerage Co. Ltd.
Defendant
Kwale Water and Sewerage Co. Ltd.
Applicant
Juma Abdalla Vitu
Respondent
Procedural Posture
Stay Application / Ruling on Application to Set Aside Judgment and Stay Execution
Legal Issues
- 1 Whether the applicant was properly served with summons, plaint, and hearing notice.
- 2 Whether the judgment delivered on 23rd May, 2013 should be set aside and the applicant granted leave to defend the suit.
- 3 Whether a stay of execution of the decree should be granted.
Ratio Decidendi
The court found that the applicant was properly served with the summons, plaint, and hearing notice, as evidenced by the respondent's affidavit and supporting documents, including a letter from the applicant referencing the suit. The applicant's denial of service was found to be untruthful and unsupported by the evidence. The court held that there was no sufficient cause to set aside the judgment or grant a stay of execution, as the applicant had been given an opportunity to defend the suit but failed to do so. Accordingly, the application to set aside the judgment and stay execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 21st August, 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC NO. 124 OF 2012
JUMA ABDALLA VITU ............................................................................ PLAINTIFF
- V E R S U S -
KWALE WATER AND SEWERAGE CO. LTD. ...................................... DEFENDANT
RULING
[1] By a notice of motion dated 21st August, 2013 the applicant herein applied for a stay of execution of the decree in this case. He also prays for an order that the judgment delivered on 23rd May, 2013 be set aside and the decree with all consequential orders be set aside and the defendant be granted leave to defend this suit.
[2] The applicant avers that he was not served with the summons and the plaint herein. He states that he has a good defence in this case. The respondent by a sworn affidavit states that he served the applicant with summons to enter appearance. Further that he proceeded to fix the case down for hearing on 26th February, 2013. That he served the applicant with the hearing notice. That he had not filed an affidavit of service and the court directed that he takes another hearing date and serve the applicant. That he took another date for hearing on 16th May, 2013 and served the applicant with a hearing notice dated 28th February, 2013. That the applicant received the hearing notice but failed to attend the court.
[3] The respondent attached a letter the applicant wrote to Coast Water Services Board referring to this case marked JAV 1.
[4] The respondent avers that the applicant is an agent of Coast Water Services Board and that it takes the responsibility in Kwale including repairs and payment of bills and services. The respondent avers that the applicant was given a chance to defend this suit and he abused it.
[5] I have perused the application and its annextures. I have equally perused the replying affidavit and all its annextures. I am convinced that the applicant was served with the plaint and sermons to enter appearance. I am also convinced that the applicant was served with the hearing notice for hearing on 16th May, 2013. As a matter of fact the applicant was aware of this suit as early as 16th July, 2012 when he wrote his letter Ref. No. Kwawasco/legal matters/1/Vol.1/39 to Chief Executive Coast Water Services Board and he quoted Reference Civil Suit No. 24 of 2012. The letter was signed by Nyundo Katemboh the applicants Managing Director. The said Managing Director is the same person who has sworn the supporting affidavit for this application. In paragraph 4 of the said affidavit he states;
"We have never been served with the plaint or claim in this matter."
This cannot be true and it is a lie under oath. I find that after service the applicant did not come to court, the case was heard and judgment entered. I see no reason to disturb that judgment at all. This application is dismissed with costs to the respondent.
Dated and delivered at Mombasa in open court this 20th day of June, 2014.
S. MUKUNYA
JUDGE
20. 6.2014
In the presence of:
Wachira advocate for the respondent
Magollo advocate for the defendant/applicant