[2018] KEELC 4035 (KLR)
The court found that the ex parte judgment was entered without proper service of summons on the defendant, rendering the judgment irregular. Additionally, the plaintiff failed to disclose the existence of a prior suit (Bungoma HCCC No. 48 of 2007) involving the same subject matter, which had consent orders to...
Source-derived case information.
- Citation
- [2018] KEELC 4035 (KLR)
- Parties
- Plaintiff: Municipal Council of Bungoma; Defendant: Kenya National Trading Corporation & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte judgment set aside
- Judges
- SN Mukunya
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Summons, Subjudice Principle, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Bungoma
Plaintiff
Kenya National Trading Corporation & Another
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside for lack of service of summons on the defendant.
- 2 Whether the plaintiff concealed material facts regarding the existence of a prior suit over the same subject matter.
- 3 Whether the principle of sub judice and existing status quo orders were disregarded by the plaintiff.
Ratio Decidendi
The court found that the ex parte judgment was entered without proper service of summons on the defendant, rendering the judgment irregular. Additionally, the plaintiff failed to disclose the existence of a prior suit (Bungoma HCCC No. 48 of 2007) involving the same subject matter, which had consent orders to maintain the status quo. The court held that these material facts warranted the setting aside of the ex parte judgment to allow the defendant an opportunity to be heard. The application was unopposed, and the court exercised its discretion to set aside the judgment in the interests of justice.
Court Disposition
application allowed; ex parte judgment set aside
Orders
- The ex parte judgment entered on 7/11/2011 and all consequential orders are set aside.
- The defendant is granted leave to defend the suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 120 OF 2011.
MUNICIPAL COUNCIL OF BUNGOMA…….…………………PLAINTIFF
VERSUS.
KENYA NATIONAL
TRADING CORPORATION & ANOTHER……...…………….DEFENDANT
RULING.
[1]. The applicant filed this application under Order 10 rule 11 of the Civil Procedure Rules and Sec. 3A and 3B, Sec 1A of the Civil Procedure Act and article 159 and 48 of the Constitution of Kenya 2010. He prays that the Judgment entered herein on 7/11/2011 and all subsequential orders be set aside and that the defendant be given leave to defend the suit and the annexed defence be deemed as duly filed upon payment of requisite fees.
[2]. The applicant states that the Exparte Judgment obtained by the plaintiff against the defendant is irregular in that the defendant was not served with summons to enter appearance and with the pleadings in this matter and that the plaintiff concealed material facts from the court in that there was Bungoma High Court Civil Case No. 48 of 2007 filed by the defendant against the plaintiff herein over the same subject matter to wit Bungoma Municipality Plot 567 in which the defendant claimed to have acquired in 1981 and it prayed for a permanent injunction against the plaintiff herein from taking away the suit land. Further that there were consent orders in that suit to maintain status quo until the suit is heard and determined. It is contended by the applicant that in blatant disregard of the orders in Bungoma HCCC No. 48 of 2007, the plaintiff herein rushed to Bungoma High Court and filed Bungoma HCCC 48 of 2007 while Bungoma HCCC 48 of 2007 was subjudice. That those material facts were concealed from the Court. Finally that the respondent not having been served with the summons to enter appearance, it could not file its defence.
[3]. The respondent on realizing the entry of Judgment on 28/5/2012 one and a half years later filed this application to set aside the Judgment. The same was served on the respondents herein and a return of service filed in Court.
[4]. There is no opposition filed on the Notice of Motion. The counsel for the respondent prays that her notice of Motion dated 18th November, 2016 be allowed. The application is not opposed. I allow the same as prayed with costs to the applicants.
Judgment read In open Court.
Dated at Bungoma this 21st day ofFebruary,2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistant
Mr. Tsimonjero for the Mr. Amani for the Defendant/Applicant
N/A for the Respondent