[2006] KEHC 2106 (KLR)
The court found that there was sufficient doubt as to whether the appellants had been properly served with summons, given the discrepancy regarding their place of residence and the location where service was allegedly effected. The process-server was not called to give evidence to clarify the issue. In such...
Source-derived case information.
- Citation
- [2006] KEHC 2106 (KLR)
- Parties
- Appellant: Manji Charania; Appellant: Mehrun Manji; Respondent: Margaret Omutere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 247 of 1996
- Procedural Posture
- Civil Appeal / Appeal Against Dismissal of Application to Set Aside Ex Parte Judgment
- Outcome
- Appeal allowed; ex parte judgment set aside; suit to be heard afresh before another magistrate.
- Legal Topics
- Service of Process, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manji Charania
Appellant
Mehrun Manji
Appellant
Margaret Omutere
Respondent
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the appellants were properly served with summons to enter appearance.
- 2 Whether the ex parte judgment should be set aside due to alleged non-service.
- 3 Whether the process-server should have been called to give evidence regarding service.
Ratio Decidendi
The court found that there was sufficient doubt as to whether the appellants had been properly served with summons, given the discrepancy regarding their place of residence and the location where service was allegedly effected. The process-server was not called to give evidence to clarify the issue. In such circumstances, the court held that the ex parte judgment could not stand and should be set aside. The matter was remitted for a fresh hearing before a different magistrate, with the deposit held as security until final determination.
Court Disposition
Appeal allowed; ex parte judgment set aside; suit to be heard afresh before another magistrate.
Orders
- The ex parte judgment entered against the appellants is set aside.
- The original suit is to be heard afresh before another magistrate.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 247 of 1996
MANJI CHARANIA ………................................................………….…1ST APPELLANTS
MEHRUN MANJI …………….............................................…………… 2ND APPELLANT
VERSUS
MARGARET OMUTERE ……...............................................…………… RESPONDENT
(Being an Appeal against the Ruling/Order of Honourable B. Rashid (Mrs) dated
21st August, 1996 in the Senior Resident Magistrate’s Court at Nairobi CMCC No.6337 of 1995)
BETWEEN
MARGARET OMUTERE …….........................................…………………….. PLAINTIFF
VERSUS
MANJI CHARANIA ………….................................…………………….1ST DEFENANT
MEHRUN MANJI ……………………...........................……………. 2ND DEFENDANT
RULING
1: BACKGROUND OF APPEAL
1. The original plaintiff/respondent had on the 21 April 1994 been in the employment of the original defendant 1 and 2. They already accused her of theft by servant. She was charged but on 1. 7.95 was duly acquitted of the offence.
2. She sued her employers the defendants 1 and 2. They were served with summons to enter appearance on 5. 9.95 at 4. 30 p.m. They allegedly declined to sign the summons but accepted the same.
3. An exparte hearing was heard (B. Rashid S.R.M.) and judgment for false imprisonment and malicious damage was entered against the original defendants 1 and 2.
4. The original plaintiff executed and the decreetal amount having been released was finally deposited in the joint account with Southern Credit Bank Ltd in the name of the two advocates.
5. The defendants 1 and 2 applied for the setting aside of the exparte judgment on grounds that they had not been served with the summons. They also stated that service was said to have been effected in Highridge whilst they lived in Westlands.
6. The trial magistrate dismiss the application for setting aside the exparte judgment. The original defendant appealled to this court for redress.
7. II Findings
In the year 1996, I recall that a similar issue of service had arisen. There was a rule, which I believe still persist, that in order to remedy questions of whether a person had been served or not, especially in the case of an interlocutory judgment that there be further service at the formal proof stage by way of a hearing notice.
8. The two appellants original defendants claim they were never served. Their places of residence was in Westlands and not Highridge. The process-server in this case ought to have been called to give evidence as to where and when he effected service under Order 18 Civil Procedure Rules
9. I would accept the defendants explanation as to the doubt raised on service.
10. I did in another case decline to set aside an order for an expate judgment on grounds that I was satisfied and had ample evidence that the defendant had been correctly served. In this appeal the issue of the place of service is questionable.
11. I would allow this appeal and duly set aside the ex parte judgment entered against the appellants.
12. The original suit to be heard a fresh before another magistrate. The parties are to continue holding the deposit as security till the finalization of the suit.
13. The cost of this appeal will be in the cause and to await the finalization of the lower court case.
Dated this 23rd day of May 2006 at Nairobi
M.A. Ang’awa
Judge
Chaudhri & Associates Advocates for the appellant
Ogutu,Wariuki & Co. Advocates for the respondent