[2005] KEHC 1466 (KLR)
The court found that the affidavit of service was inadequate to prove that the Defendants were properly served with summons as required by the rules of procedure. Specifically, service on the third Defendant, a corporation, was not effected at its registered office in Nairobi, and the individual Defendants credibly...
Source-derived case information.
- Citation
- [2005] KEHC 1466 (KLR)
- Parties
- Plaintiff: Kimwele Muneeni; Defendant: Caroline Mango; Defendant: Maureen Mudi; Defendant: The Standard Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 204 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application allowed; ex-parte judgment set aside; leave granted to file defence.
- Legal Topics
- Service of Process, Setting Aside Judgment, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimwele Muneeni
Plaintiff
Caroline Mango
Defendant
Maureen Mudi
Defendant
The Standard Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the summons to enter appearance and attend to the application were properly served upon the Defendants as required by the rules of procedure.
- 2 Whether the Defendants have a defence to the Plaintiff’s claim sufficient to justify setting aside the ex-parte judgment.
Ratio Decidendi
The court found that the affidavit of service was inadequate to prove that the Defendants were properly served with summons as required by the rules of procedure. Specifically, service on the third Defendant, a corporation, was not effected at its registered office in Nairobi, and the individual Defendants credibly denied service. The court was not convinced by the process server's affidavit and determined that the irregular service rendered the ex-parte judgment invalid. Additionally, the draft defence presented by the Defendants disclosed serious issues that warranted a trial on the merits. Consequently, the court exercised its discretion to set aside the ex-parte judgment and granted...
Court Disposition
Application allowed; ex-parte judgment set aside; leave granted to file defence.
Orders
- The ex-parte judgment entered in default is set aside.
- Defendants are granted leave to file their defences within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 204 of 2004
KIMWELE MUNEENI ………………………..…………………………. PLAINTIFF
VERSUS
CAROLINE MANGO
MAUREEN MUDI
THE STANDARD LTD ………………………………………………. DEFENDANTS
R U L I N G
Application dated 10. 11. 2004 is by the Defendants. The prayers sought have been granted but the main prayer that the ex-parte judgement entered herein be set aside with all consequent orders and that the Defendants be allowed to file statement of defence to this suit is outstanding. The application is supported by affidavit sworn by Moses Kurgat who has attached a draft statement of Defence. There is also a further affidavit sworn by first defendant. This Defendant denies the summons to enter appearance was ever served upon her and that affidavit of service by Abelazo Mutus is not truthful. The affidavit of Regional News Bureau Chief also denies service shows that the company’s registered office is in Nairobi where court process should be served.
I have perused the affidavits in support of application and of the Respondent. The only issue is whether summons to enter appearance and to attend to the application were served upon the Defendants as required by rules of procedure.
The other issue to justify setting aside judgment is; has the Defendant a defence to the Plaintiff’s claim. The Respondents seem to emphasize the allegations made but these matters will be heard properly at the trial. I have perused the attached draft defence and I am satisfied that there are serious issues relating the support defence of the suit by Defendants.
The affidavit of service is not adequate to prove proper service. Corporates are served at their registered office. The third Defendant is a well-known newspaper publisher and their head office is in Nairobi. The first and second Defendants are employees of the company. They deny the alleged service and upon perusing the affidavit of service by Mr Mutua I am not convinced that they were served. They had nothing to lose by admitting the service, the principal, their employer would see to their representation.
In the circumstances I find the service of summons was effected irregularly. I set aside the judgement entered exparte in default and grant leave to the Defendants to file their defences within the next 14 days from today.
Costs shall be in the cause.
Dated 29th July 2005.
J.N. KHAMINWA
JUDGE