[2008] KEHC 3863 (KLR)
The court found that the application to set aside the ex parte judgment, filed on 14 September 2007, was made without the instructions or authority of the defendant's principal director, A. Ngwiri. The director appeared in court and testified under oath that he had no knowledge of the suit or the application. The...
Source-derived case information.
- Citation
- [2008] KEHC 3863 (KLR)
- Parties
- Plaintiff: KARAGITA SELF-HELP MIXED GROUP; Defendant: THIKA RIVER ESTATE LIMITED
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2561 of 1994
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application struck out with costs
- Legal Topics
- Ex Parte Judgment, Setting Aside Orders, Affidavit Requirements, Authority of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KARAGITA SELF-HELP MIXED GROUP
Plaintiff
THIKA RIVER ESTATE LIMITED
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the application to set aside the ex parte judgment was properly filed with instructions from the defendant's principal director.
- 2 Whether an affidavit sworn by the advocate and not the client is sufficient to support the application to set aside ex parte orders.
Ratio Decidendi
The court found that the application to set aside the ex parte judgment, filed on 14 September 2007, was made without the instructions or authority of the defendant's principal director, A. Ngwiri. The director appeared in court and testified under oath that he had no knowledge of the suit or the application. The affidavit in support of the application was sworn by the advocate and not by the director or any authorized officer of the defendant company. The court held that such an application, lacking proper authority and supporting affidavit from a competent person, cannot stand. Consequently, the application was struck out, and costs were awarded to the plaintiff/respondent, to be paid...
Court Disposition
application struck out with costs
Orders
- The application dated 14 September 2007 is struck out.
- Costs to the plaintiff/respondent to be paid by J. H. Kinyanjui & Co. Advocates directly.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2561 of 1994
1. Land and Environmental Law Division
2. Subject of main suit – land
a) Finalized suit
b) Hearing heard exparte
3. Application 4. 9.07
Seeking leave to set aside ex parte orders. Affidavit by advocate and not client
4. Opposition by respondent.
Principal director Author K. Ngwiri may not exists advocate called director
5. Director – claims he knows nothing of this suit and of application
6. Held: Application 4. 9.07 taken and or field without instructions of director principal.
The same is struck out.
7. Case law – Nil
8. Advocates
R. Kinuthia of R. Kinuthia & Co. Advocates for the plaintiff -present
F.K. Chebii holding brief for H. Kinyanjui & Co. Advocates for the defendant
M. Chebii for plaintiffs in Hccc1335/06
KARAGITA SELF-HELP MIXED GROUP ………………PLAINTIFF/APPLICANT
VERSUS
THIKA RIVER ESTATE LIMITED …………...…… DEFENDANT/RESPONDENT
RULING
I: Application 14. 9.07 seeking orders to set aside ex parte judgment.
1. When this suit before this court came for hearing, the defendants were absent. It proceeded to trial under order IXb r 3 (a) Civil Procedure Rules and an exparte judgment duly entered.
2. On 14 September 2007, the advocate on record for the defendant filed an application of the same date seeking to set aside the orders of the court. It was therefore noted that the affidavit so deponed to was by the defendants advocate and not by the Principal Director of the company one A. Ngwiri . The respondents directors was in fact said to be dead according to the plaintiff/respondent.
3. This court gave parties time to summon A. Ngwiri to court. After several attempts he appeared and claimed that he was moving a lot from different residence. That at one time he was ill. He nonetheless knew nothing of this case nor the application before the court. He stated this on oath.
II: Opinion
4. The application of 14 September 2007 was most certainly filed without instructions from Principal Director of the defendants company. I therefore would rule that it cannot stand having been denied by the applicant himself. The same is hereby struck out with costs to the plaintiff/respondent to be paid by J. H. Kinyanjui and Co. Advocates directly.
Dated this 20th day of February 2008.
M.A. ANG’AWA
JUDGE
R. Kinuthia of R. Kinuthia & Co. Advocates for the plaintiff-present
F.K. Chebii holding brief for H. Kinyanjui & Co. Advocates for the defendant
M. Chebii for plaintiffs in Hccc1335