[2004] KEHC 1978 (KLR)
The court found that there was no evidence on record to show that the 2nd and 3rd defendants were served with summons to enter appearance. There was no affidavit of service, and the respondents did not provide any such affidavit or offer the process server for cross-examination. The court held that, in the absence...
Source-derived case information.
- Citation
- [2004] KEHC 1978 (KLR)
- Parties
- Plaintiff: Mike Karanja Githiru; Defendant: Peter Mwaura; Defendant: Joseph Kepkurui Chepkwony; Defendant: Generation Millers Kisii
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 306 of 1996
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed conditionally
- Legal Topics
- Ex Parte Judgment, Service of Summons, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mike Karanja Githiru
Plaintiff
Peter Mwaura
Defendant
Joseph Kepkurui Chepkwony
Defendant
Generation Millers Kisii
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the 2nd and 3rd defendants were served with summons to enter appearance.
- 2 Whether the ex-parte judgment entered against the 2nd and 3rd defendants should be set aside.
Ratio Decidendi
The court found that there was no evidence on record to show that the 2nd and 3rd defendants were served with summons to enter appearance. There was no affidavit of service, and the respondents did not provide any such affidavit or offer the process server for cross-examination. The court held that, in the absence of proof of service, the entry of judgment against the 2nd and 3rd defendants was irregular. The court further held that the lapse of time since the entry of judgment was irrelevant to the question of whether service had been effected. Consequently, the court determined that the ex-parte judgment against the 2nd and 3rd defendants should be set aside to allow them to defend the...
Court Disposition
application allowed conditionally
Orders
- The application is allowed in terms of prayer 3: the ex-parte judgment against the 2nd and 3rd defendants is set aside.
- The plaintiff is to serve the 2nd and 3rd defendants with summons and the plaint.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL SUIT NO.306 OF 1996
MIKE KARANJA GITHIRU…...………………….…..PLAINTIFF
VERSUS
PETER MWAURA )
JOSEPH KEPKURUI CHEPKWONY )…………..DEFENDANTS
GENERATION MILLERS KISII )
R U L I N G
The application is a Chamber Summons dated 15th October, 2003. It is brought under Order IXA Rule 11 of Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant argued prayers 3 and 4 of the application which states:-
“3 That this court be pleased to set aside theex-parte Judgment entered against the 2nd and 3rd defendants/applicants herein.
4. That flowing from prayer numbers 3 above the 2nd and 3rd defendants/applicants be granted leave to file a statement of defence out of time and to defend the suit herein.”
The main ground in support of this application is that the 2nd and 3rd defendants were never served with Summons and further that the advocate who entered appearance on their behalf was never instructed by them. The advocate, KARIGO THUO, filed an affidavit stating that only the 1st defendant instructed him in the case but that he erroneously entered appearance for all defendants. He filed no defence for them.
The application is opposed. The only point the Counsel for the Respondent argued is that the affidavit of KARIGO THUO is deficient as to reason for filing memo of appearance for the applicants who had not instructed him.
The issue before court is whether or not the 2nd and 3rd defendants in this case were served with Summons to enter appearance. There is no affidavit of service on record to allege such service. The respondents have not annexed any in reply to this application and neither have they offered for cross-examination process server who may have served it. It is safe then to argue that no service was effected on the applicants. It is irrelevant that the applicants have come to court many years after Judgment in default was entered. In my view there appears to be nothing on record that warranted the Deputy Registrar to believe that the two applicants had been served. The entry of Judgment against them is therefore irregular and both deserve to have it set aside.
Accordingly I will allow the application conditionally. The applicants’ application is allowed in terms of prayer 3. The plaintiff to serve the two defendants with Summons and the plaint to enable them file the Memo of Appearance and the defence within the time prescribed by the law.
Orders accordingly.
Dated this 6th day of March, 2004 at Nakuru.
JESSIE LESIIT
JUDGE