[2013] KEHC 6714 (KLR)
Given the acrimonious history of the matter, including allegations of improper service and forgery, and in the interests of justice and fairness, the court determined that the defendant should be given another opportunity to be heard on the amended notice of motion for revival and substitution. The court found that...
Source-derived case information.
- Citation
- [2013] KEHC 6714 (KLR)
- Parties
- Plaintiff: Nelson Muguku Njoroge; Defendant: Furncon Ltd; Plaintiff: Leah Wanjiku Muguku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 80 of 1999
- Procedural Posture
- Civil Suit / Directions on Hearing of Amended Notice of Motion for Revival and Substitution
- Outcome
- Application to be heard inter partes; previous proceedings struck out.
- Judges
- DW Mbuteti
- Legal Topics
- Revival of Suit, Substitution of Parties, Ex Parte Judgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Muguku Njoroge
Plaintiff
Furncon Ltd
Defendant
Leah Wanjiku Muguku
Plaintiff
Procedural Posture
Civil Suit / Directions on Hearing of Amended Notice of Motion for Revival and Substitution
Legal Issues
- 1 Whether the suit should be revived following abatement due to the death of the plaintiff.
- 2 Whether Leah Wanjiku Muguku should be substituted as plaintiff in place of the deceased.
- 3 Whether the defendant was properly served with notice of hearing of the amended notice of motion.
Ratio Decidendi
Given the acrimonious history of the matter, including allegations of improper service and forgery, and in the interests of justice and fairness, the court determined that the defendant should be given another opportunity to be heard on the amended notice of motion for revival and substitution. The court found that although service by registered post is ordinarily sufficient for a corporation, the circumstances warranted striking out the previous proceedings and directing that the application be heard inter partes to ensure both parties have a fair hearing.
Court Disposition
Application to be heard inter partes; previous proceedings struck out.
Orders
- The proceedings of 16th July 2013 are struck out.
- The amended notice of motion dated 14th June 2013 shall be heard inter partes.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO 80 OF 1999
NELSON MUGUKU NJOROGE ....................PLAINTIFF
VERSUS
FURNCON LTD................... ......................DEFENDANT
D I R E C T I O N S
1. The Plaintiff filed this suit on 15th January 1999. He claimed from the Defendant unpaid arrears of rent of KShs 610,843/60, costs and interest. The Defendant was no longer in the premises.
2. The record of the Court discloses that on 23rd September 2002 ex parte judgment was entered for the Plaintiff for the total sum of KShs 757,445/20 plus costs. The Plaintiff’s costs were subsequently taxed and there were unsuccessful attempts at execution.
3. The court file appears to have then disappeared and irretrievably lost. An order for its reconstruction was sought and apparently obtained, and the file appears to have been reconstructed.
4. There appears to be pending an application by the Defendant dated 28th August 2007 for an order to set aside the ex parte judgment. There is also pending a further application by the Defendant (chamber summons dated 1st December 2010) seeking leave to amend the application to set aside ex parte judgment.
5. In the meantime the Plaintiff died on 10th December 2010. His legal representative, Leah Wanjiku Muguku, then applied by notice of motion dated 2nd October 2012, amended on 14th June 2013, for the main orders for revival of the suit, which is said to have abated, and for substitution of Leah Wanjiku Muguku in place of the deceased Plaintiff.
6. As I was perusing the file in preparation to write ruling on the said application I came across various old complaints by the Defendant that his signature had been forged at some point to falsify alleged service upon him. At some point the Court had ordered investigations into those allegations. I could not readily find on the record the result of the investigations.
7. I then saw a letter dated 19th September 2013 addressed to Court by the Defendant. It stated, inter alia, that he had visited the registry to peruse the court file but was advised that the file was not available as it was with the Judge for preparation of ruling for delivery on 27th September 2013; that he was surprised as he had not been served with notice for any hearing; and that he took exception at this state of affairs.
8. Indeed the amended notice of motion dated 14th June 2013 came up for hearing on 16th July 2013. Learned counsel for the Plaintiff informed the court that the Defendant had been duly served, and an affidavit of service filed on 15th July 2013 was referred to. It disclosed service by registered post, which service is ordinarily good service, the Defendant being a corporation.
9. However, given the acrimonious history of this matter, I will give the Defendant another chance to be heard upon the amended notice of motion dated 14th June 2013. I will therefore strike out the proceedings of 16th July 2013 and direct that the application be heard inter partes. Appropriate further directions towards that end shall be given on 27th September 2013. It is so directed. Costs shall be in the cause.
DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 27TH DAY OF SEPTEMBER 2013