[2005] KEHC 1884 (KLR)
The court found that service of summons on the applicant's 13-year-old daughter did not constitute proper service as required by Order V Rule 12 of the Civil Procedure Rules, which mandates service on an adult member of the family. The applicant provided a satisfactory explanation for his failure to enter...
Source-derived case information.
- Citation
- [2005] KEHC 1884 (KLR)
- Parties
- Plaintiff: Njoya Farmers Kenya Ltd; Defendant: Njoya Farmers & Partners; Defendant: Kingori Mbogo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 22 of 2003
- Procedural Posture
- Civil Case / Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed
- Judges
- JL Osiemo
- Legal Topics
- Setting Aside Judgment, Service of Process, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoya Farmers Kenya Ltd
Plaintiff
Njoya Farmers & Partners
Defendant
Kingori Mbogo
Defendant
Procedural Posture
Civil Case / Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered in default of appearance should be set aside.
- 2 Whether service of summons on a 13-year-old daughter constitutes proper service under the Civil Procedure Rules.
- 3 Whether the applicant has a serious defence and a satisfactory explanation for failure to enter appearance.
Ratio Decidendi
The court found that service of summons on the applicant's 13-year-old daughter did not constitute proper service as required by Order V Rule 12 of the Civil Procedure Rules, which mandates service on an adult member of the family. The applicant provided a satisfactory explanation for his failure to enter appearance, having only learned of the proceedings after judgment was entered. Additionally, the applicant demonstrated that he has a serious defence to the action. Consequently, the court exercised its discretion to set aside the interlocutory judgment entered in default of appearance.
Court Disposition
application allowed
Orders
- The interlocutory judgment entered on 7th March 2003 is set aside.
- Defendants are granted leave to enter Memorandum of Appearance and file Defence within 10 days from the date of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI CIVIL CASE 22 OF 2003 (1)
NJOYA FARMERS KENYA LTD…………………..PLAINTIFF/RESPONDENT
VERSUS
NJOYA FARMERS & PARTNERS................1ST DEFENDANT/APPLICANT
KINGORI MBOGO.....................................2ND DEFENDANT/APPLICANT
RULING
The defendant by way of this Chamber Summons application seeks orders that the interlocutory judgment entered in favour of the plaintiff in default of appearance be set aside. The application is expressed to be brought under Order IXA Rule 10 and 11 of the Civil Procedure Rules and Section 3A of Civil Procedure Act. The application is based on the ground that there was no proper service and the supporting affidavit of the applicant in which he has deponed that service was effected on his 13 years old daughter. He further depones that he stays away from the firm where service is alleged to have been made.
He came to know about it after the interlocutory judgment had been entered. The application is opposed on the ground that there was proper service. The applicant is asking the court to exercise its discretion to set aside the interlocutory judgment in favour of the plaintiff who failed to enter appearance.
Before the court exercises this discretion, the applicant must show that he has some serious defence to the action and that he has some satisfactory explanation for his failure to enter appearance the suit.
The judge should consider whether any useful purpose could be served by setting aside the judgment and obviously no useful purpose would be served if there were no possible defence to the action and now it came about that the applicant found himself bound by a judgment regularly obtained, to which he could have set up some serious defence.
The applicant has shown that he has a serious defence to the action which he has filed herein and that he has given satisfactory explanation for his failure to enter appearance to the suit service was made on his 13 years daughter and he came to know about it after the interlocutory judgment had been entered. Service on the 13 years old daughter was not proper service. It contravenes the provisions of Order V Rule 12 which provides:-
“Rule 12” “When in any suit the defendant cannot be found, service may be made on any agent of the defendant empowered to accept service or any adult member of the family of the defendant who is residing with him.”
Having been satisfied that the applicant has a serious defence to the action and that he has given satisfactory explanation for his failure to enter appearance to the suit, I allow the application and I do order that the said interlocutory judgment entered herein on 7th March 2003 be set aside. The defendants are granted leave to enter Memorandum of Appearance and file Defence within 10 days from today.
Costs in the cause.
Those are the orders of this court.
Dated at Nairobi this 14th day of June 2005.
J.L.A. OSIEMO
JUDGE