[2004] KEHC 2508 (KLR)

[2004] KEHC 2508 (KLR)

The court found that the judgment in the lower court was irregularly entered because the time for filing a defence had not expired. The judge held that the failure to serve the memorandum of appearance did not remove the defendant's right to file a defence. As a result, the application to set aside the irregular...

Source-derived case information.

Citation
[2004] KEHC 2508 (KLR)
Parties
Appellant: Municipal Council of Mombasa; Respondent: Stephen Kiunga t/a Kanjalu Building Contractors
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Case Number
? 199 of 2003
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Irregular Judgment
Outcome
application allowed; irregular judgment set aside
Legal Topics
Irregular Judgment, Right to Defence, Entry of Judgment, Service of Appearance
Source Language
en
Civil Procedure Irregular Judgment Right to Defence Entry of Judgment Service of Appearance

Source-derived case record

Summary, issues, holding and outcome

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Parties

Municipal Council of Mombasa

Appellant

Stephen Kiunga t/a Kanjalu Building Contractors

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Set Aside Irregular Judgment

Legal Issues

  1. 1 Whether the judgment in the lower court was irregularly entered before the time for filing defence had expired.
  2. 2 Whether failure to serve the memorandum of appearance affects the defendant's right to file a defence.

Ratio Decidendi

The court found that the judgment in the lower court was irregularly entered because the time for filing a defence had not expired. The judge held that the failure to serve the memorandum of appearance did not remove the defendant's right to file a defence. As a result, the application to set aside the irregular judgment was allowed, and the costs were ordered to be in the appeal. The court did not find it necessary to consider the requirements of Order 41 Rule 3 of the Civil Procedure Rules, as the irregularity was dispositive.

Court Disposition

application allowed; irregular judgment set aside

Orders

  • The application is allowed.
  • Costs to be in the appeal.