[2020] KEHC 2244 (KLR)
The court exercised its supervisory jurisdiction under Article 165(6) of the Constitution to review the proceedings in the subordinate court. Upon perusal, the court found that a final judgment had been entered by default and a warrant of arrest issued. Recognizing that an application to set aside the judgment was...
Source-derived case information.
- Citation
- [2020] KEHC 2244 (KLR)
- Parties
- Applicant: Mapenzi Mohamed; Respondent: Mvita Service Station Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E5 of 2020
- Procedural Posture
- Miscellaneous Application / Directions
- Outcome
- directions issued; file closed
- Judges
- CA Otieno
- Legal Topics
- Supervisory Jurisdiction, Setting Aside Judgment, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mapenzi Mohamed
Applicant
Mvita Service Station Ltd
Respondent
Procedural Posture
Miscellaneous Application / Directions
Legal Issues
- 1 Whether the application to set aside judgment should be heard before the Notice To Show Cause is determined.
- 2 Whether the supervisory jurisdiction under Article 165(6) of the Constitution is properly invoked in these circumstances.
Ratio Decidendi
The court exercised its supervisory jurisdiction under Article 165(6) of the Constitution to review the proceedings in the subordinate court. Upon perusal, the court found that a final judgment had been entered by default and a warrant of arrest issued. Recognizing that an application to set aside the judgment was pending, the court determined that it would be just and efficient for the application to set aside to be heard and determined before any action is taken on the Notice To Show Cause. This sequence preserves the applicant's right to challenge the judgment and prevents the Notice To Show Cause from being rendered moot if the judgment is set aside. The court thus directed that the...
Court Disposition
directions issued; file closed
Orders
- The application to set aside judgment shall be heard and determined before the Notice To Show Cause.
- These directions shall be extracted and served upon the trial court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC APPL. NO. E5 OF 2020
MAPENZI MOHAMED.....................................................................APPLICANT
VERSUS
MVITA SERVICE STATION LTD................................................RESPONDENT
D I R E C T I O N S
1. I have called and perused CMCC No. 2552 of 2015 for perusal pursuant to the provisions of Article 165(6) of the constitution.
2. My perusal of the file show that indeed there is a final judgment entered upon the default to file an appearance nor defence by the defendant dated 4/7/2017 and a warrant of arrest issued on the 9/9/2020.
3. I have also confirmed that there is an application by the judgment debtor dated 8/9/2020 and filed the same day to which responses have been filed just as there is an Affidavit file in response to the Notice To Show Cause.
4. Invoking my supervising powers, I consider it right that the hearing and determination of the application to set aside should precede the Notice To Show Cause owing to the fact that if the Notice To Show Cause is dealt with first the application to set aside may lose its basis.
5. I have also noted that the matter is scheduled for Mention on 19/10/2020. I direct that these directions be extracted and served upon the trial court.
6. Having directed as foregoing there is nothing pending on the application dated 6/10/2020 for which reason I order that this file be now closed.
Dated and Signed at Mombasa this 15th day of October, 2020.
P.J.O. OTIENO
JUDGE