[2004] KEHC 134 (KLR)
The court found that the objectors' application was not properly before the court because it had not been served on the respondents/judgment debtors as required by Order 21 rule 57(2) of the Civil Procedure Rules. The requirement for service is mandatory unless the court directs otherwise, and no such direction was...
Source-derived case information.
- Citation
- [2004] KEHC 134 (KLR)
- Parties
- Plaintiff: Lee Eun Hee; Defendant: Charles Gitonga Gakuu 3 Others; Applicant: Dallago Tours & Safaris Ltd and 2 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1059 of 1999
- Procedural Posture
- Civil Suit / Ruling on Objector's Chamber Summons Application
- Outcome
- application struck out
- Legal Topics
- Execution of Decree, Objector Proceedings, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lee Eun Hee
Plaintiff
Charles Gitonga Gakuu 3 Others
Defendant
Dallago Tours & Safaris Ltd and 2 Others
Applicant
Procedural Posture
Civil Suit / Ruling on Objector's Chamber Summons Application
Legal Issues
- 1 Whether the objectors' application was properly before the court in light of non-service on the judgment debtors as required by Order 21 rule 57(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the objectors' application was not properly before the court because it had not been served on the respondents/judgment debtors as required by Order 21 rule 57(2) of the Civil Procedure Rules. The requirement for service is mandatory unless the court directs otherwise, and no such direction was given in this case. As a result, the court declined to consider the merits of the application or the submissions made and struck out the application solely on this technical ground, awarding costs to the plaintiff/decree holder.
Court Disposition
application struck out
Orders
- The application dated 4th December 2003 is struck out with costs to the plaintiff/decree holder.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 1059 of 1999
LEE EUN HEE………......................................………PLAINTIFF/DECREE HOLDER
-versus-
CHARLES GITONGA GAKUU 3 OTHERS…….DEFENDANTS/ JUDGMENT DEBTOR
-and-
DALLAGO TOURS & SAFARIS LTD AND 2 OTHERS….………………OBJECTORS
R U L I N G
By Chamber Summons application dated the 4th December 2003 brought under Order 21 Rules 56 and 57 of the Civil Procedure Rules, the Objectors have sought orders including:-
“THAT the purported proclamations of the Objector’s goods herein by the Decree Holder on 15th November, 2003 against all the named goods and items as set out therein in the schedule of movable properties be and is hereby set aside and/or raised unconditionally.”
Upon grounds set forth therein and supported by the affidavit of Nicholas Kariuki Gichobi made also on the 4th December 2003.
The Plaintiff/Decree Holder/Respondent opposes the application on the basis of the Replying Affidavit of Francis N. Kimani made on the 6th January 2004.
Whilst I have heard the respective submissions of Mr. Njuguna and Mrs. Kimani for the Objectors/Applicants and Plaintiff/Decree Holder/Respondent respectively, I will not for the purposes of this Ruling consider in any manner whatsoever the merits or otherwise of such submissions nor of the application and the grounds upon which it is made principally because of my finding that technically the application is not properly before the court inasmuch as it has not been served on the Respondents/Judgment Debtors in accordance with the provisions of Order 21 rule 57 (2) of the Civil Procedure Rules which are mandatory, unless the court otherwise directs, and the court has not done so in the present case.
Accordingly, and for this reason only it is ordered that the application dated the 4th December 2003 be and is hereby struck out with costs to the Plaintiff/Decree Holder.
Dated at Nairobi this 13th day of February 2004.
P. KIHARA KARIUKI
Ag. JUDGE