[2003] KEHC 615 (KLR)
The court found that although substituted service by registered post is generally effective, the defendant provided uncontroverted evidence that he received the hearing notice after the ex parte judgment had already been entered. The court accepted that there was a bona fide mistake regarding the hearing date,...
Source-derived case information.
- Citation
- [2003] KEHC 615 (KLR)
- Parties
- Plaintiff: Margaret Mwihaki Wanjau; Defendant: Joseph Muiruri Mugo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 638 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte judgment set aside
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Service of Process, Substituted Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margaret Mwihaki Wanjau
Plaintiff
Joseph Muiruri Mugo
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered on 28-1-03 should be set aside due to lack of proper service of the hearing notice on the defendant.
- 2 Whether substituted service by registered post constituted effective service in the circumstances.
- 3 Whether the defendant had a bona fide reason for not attending the hearing.
Ratio Decidendi
The court found that although substituted service by registered post is generally effective, the defendant provided uncontroverted evidence that he received the hearing notice after the ex parte judgment had already been entered. The court accepted that there was a bona fide mistake regarding the hearing date, especially since the matter had previously been fixed for a different date. Applying the principle from SHAH vs MBOGO, the court exercised its discretion to set aside the ex parte judgment, holding that justice required the defendant be given an opportunity to be heard where he was genuinely unaware of the hearing date despite making efforts to attend.
Court Disposition
application allowed; ex parte judgment set aside
Orders
- The ex parte order of 28-1-03 is set aside together with consequential orders.
- The application is to be set for fresh hearing on a priority basis.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.638 OF 2002
MARGARET MWIHAKI WANJAU …….……..PLAINTIFF
V E R S U S
JOSEPH MUIRURI MUGO …………………DEFENDANT
R U L I N G
This is a Chamber Summons application dated 7-02-03 under O.9B r8 & O.21 & 50 r12 of the Civil Procedure Rules for orders that the ex parte judgment against defendant on 28-1-03 be set aside and a stay of execution and eviction be granted pending hearing of the application and that an order do issue for a valuation to be carried out by Agricultural Officer on destroyed property of the applicant herein. That was order given on 28-1-03 ex parte in default of appearance by defendant. Now in this application supported by affidavit of Joseph Muiruri Mugo and Gathiga Mwangi both sworn on 7-2-03 wherein they say that the case was first listed for hearing on 15-1-03 but was not listed for hearing that day. However, they fixed it for hearing (Notice of motion dated 4-10-02) on 24-03-2003 and they sent a hearing notice which was served on Ms Waruhiu Kowade advocates for the respondents on 23-1-03 but then on 29-1-03 they received a registered letter showing that the case be heard on 28-1-03 a day after the ex parte order. But the respondent through replying affidavit of Margaret Mwihaki Wanjau sworn on 20-3-03 confirms that the case was not listed on 15- 1-03 when it was to be heard but that they fixed the next hearing for 28-1-03. The process server for the respondent Daniel Ndongo Munyoli in an affidavit dated 23-1-03 confirms sending hearing notice by registered post on 17-1- 03 to the last known address of the respondent`s advocates in Nyeri. His letter was actually posted on 22-01-03 from City Square Post Office here in Nairobi.
From this the respondent say they received the notice on 29-1-03 a day after the order being 7th day after postage.
I have considered this evidence and it may just as well be that in fact respondents were not served with this hearing notice in time. There is no evidence to controvert their assertion that the received it on 29-1-2003. It is granted that this was substituted service but that does not make it less effectual and is as good as personal service and the court was entitled to proceed as it does, but it is not necessarily due service and it is open to the defendant to show that he had no knowledge of the applicant being heard. Indeed after fixing the hearing for 24-03-03 which date appears crossed in the court record there could have been a bonafide mistake as to date of hearing. I believe where a party is genuinely …..aware of the hearing date in spilt of efforts taken by him to attend, the ex parte order should be set aside.
The principle laid down by Harris J in SHAH vs MBOGO [1967] EA 116 seems to support my exercise of discretion here to allow the application which I hereby do. The ex parte order of 28-1-03 is hereby set aside together with consequential orders and I direct that the application be set for fresh hearing on priority basis. Cost will be in the cause.
Delivered this 9th day of May 2003
A. I. HAYANGA
J U D G E
Read to Mr. Kihara for applicant
N/A for Respondent
A. I. HAYANGA
J U D G E