[2009] KEHC 999 (KLR)
The court found that the affidavit of service by the process server was clear and truthful, and the applicant failed to challenge it by cross-examination or by calling any of the persons named in the affidavit. The applicant's own draft defence acknowledged a settlement agreement and the agreed sum, which...
Source-derived case information.
- Citation
- [2009] KEHC 999 (KLR)
- Parties
- Plaintiff: Labh Singh Harmnam Singh Ltd; Defendant: Ahmed Salim Ahmed Jeizan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 274 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Judgment, Service of Process, Default Judgment, Leave to Defend
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Labh Singh Harmnam Singh Ltd
Plaintiff
Ahmed Salim Ahmed Jeizan
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the judgment entered against the defendant should be set aside for lack of service of summons.
- 2 Whether the defendant should be granted leave to defend the suit.
- 3 Whether the plaintiff breached a settlement agreement by adding extraneous charges and interest.
Ratio Decidendi
The court found that the affidavit of service by the process server was clear and truthful, and the applicant failed to challenge it by cross-examination or by calling any of the persons named in the affidavit. The applicant's own draft defence acknowledged a settlement agreement and the agreed sum, which corresponded with the plaintiff's account. There was no sufficient basis to set aside the default judgment, as the applicant did not demonstrate lack of service or a meritorious defence. Accordingly, the application to set aside the judgment was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the judgment is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS)
Civil Case 274 of 2009
LABH SINGH HARMNAM SINGH LTD……………….PLAINTIFF
VERSUS
AHMED SALIM AHMED JEIZAN……………………...DEFENDANT
RULING
Chamber Summons dated 26/6/2009 brought by applicant seeks to set aside judgment entered against the defendant judgment debtor on 25/5/2009 together with consequential orders and that the plaintiff and his agents be compelled to forthwith restrain to the defendant. All goods seized removed and attached from the defendants premises at Ruby Estate South C. And that the defendant be granted leave to defend the suit. The application is based on grounds stated and affidavit sworn by the applicant. The applicant denies any service of summons to enter appearance. He also denies being indebted to the plaintiff.
I have perused the affidavit sworn by process server. It looks clear and truthful. The applicant did not call the process server for cross-examination or the persons who are named in that affidavit of service. In his draft of defence he states paragraph 2 he does disclose that there was settlement reached on 24/7/2009. the parties agreed that the figure payable was in the sum of Kshs.4,500,000/= and that it is plaintiff who breached the terms of the said agreement by adding extraneous charges and interest on the agreed figure. That story corresponds with that of the plaintiff and I find no reason to set aside judgment entered in default.
For the above reasons, application is dismissed with costs.
Orders accordingly.
Dated, signed and delivered this 13th day of November, 2009.
JOYCE N. KHAMINWA
JUDGE