[2004] KEHC 2663 (KLR)

[2004] KEHC 2663 (KLR)

The court found that there was no proper or valid service of summons on the first defendant/applicant, as required by the Civil Procedure Rules. The affidavit of service was deficient, lacking essential details such as time, manner, and relationship of the person served to the defendant. Furthermore, the summons themselves were defective, requiring appearance within 10 days instead of at least 10 days, rendering them invalid. The court held that where there is no proper service, it is mandatory to set aside the ex parte judgment, regardless of the age of the decree or alleged lack of defence. The court exercised its discretion judicially to allow the application, set aside the ex parte...

Citation
[2004] KEHC 2663 (KLR)
Parties
Plaintiff: Rapando; Defendant: Constantine Ouma; Defendant: Ouma & 6 Others
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
9 February 2004
Case Number
Civil Suit 258 of 2000
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Outcome
application allowed
Legal Topics
Setting Aside Ex Parte Judgment, Service of Process, Judicial Discretion, Affidavit of Service
Source Language
English
Civil Procedure Setting Aside Ex Parte Judgment Service of Process Judicial Discretion Affidavit of Service

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Rapando

Plaintiff

Constantine Ouma

Defendant

Ouma & 6 Others

Defendant

Procedural Posture

Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether there was proper and valid service of summons on the first defendant/applicant.
  2. 2 Whether the ex parte judgment and consequential orders should be set aside for want of proper service.
  3. 3 Whether the applicant should be granted leave to file defence out of time.

Ratio Decidendi

The court found that there was no proper or valid service of summons on the first defendant/applicant, as required by the Civil Procedure Rules. The affidavit of service was deficient, lacking essential details such as time, manner, and relationship of the person served to the defendant. Furthermore, the summons themselves were defective, requiring appearance within 10 days instead of at least 10 days, rendering them invalid. The court held that where there is no proper service, it is mandatory to set aside the ex parte judgment, regardless of the age of the decree or alleged lack of defence. The court exercised its discretion judicially to allow the application, set aside the ex parte...

Court Disposition

application allowed

Orders

  • The ex parte judgment and all consequential orders are set aside.
  • The applicant is granted leave to file defence out of time.