[2015] KEHC 95 (KLR)
The court found that, given the ex parte judgment entered on 2nd December 2003 and the prolonged delay in concluding the matter, it was just and expedient to allow the plaintiffs to proceed by way of formal proof and to serve the defendants by registered post. The court also recognized the right of the defendants to...
Source-derived case information.
- Citation
- [2015] KEHC 95 (KLR)
- Parties
- Plaintiff: Nyoike Waweru & Penninah Wanjiru Wanyoike (suing in their capacity as the father and mother/legal representatives of the estate of deceased James Chege Wanyoike); Defendant: Zavera Nkubu Nkubitu; Defendant: Simon Wanyoike Wangoi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 484 of 2002
- Procedural Posture
- Civil Case / Ruling on Ex Parte Application for Leave to Proceed by Formal Proof and for Substituted Service
- Outcome
- Application allowed as prayed.
- Judges
- RE Aburili
- Legal Topics
- Ex Parte Judgment, Formal Proof, Substituted Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nyoike Waweru & Penninah Wanjiru Wanyoike (suing in their capacity as the father and mother/legal representatives of the estate of deceased James Chege Wanyoike)
Plaintiff
Zavera Nkubu Nkubitu
Defendant
Simon Wanyoike Wangoi
Defendant
Procedural Posture
Civil Case / Ruling on Ex Parte Application for Leave to Proceed by Formal Proof and for Substituted Service
Legal Issues
- 1 Whether the plaintiffs should be granted leave to proceed by way of formal proof hearing.
- 2 Whether leave should be granted to serve the defendants by registered post due to lapse of time since ex parte judgment.
Ratio Decidendi
The court found that, given the ex parte judgment entered on 2nd December 2003 and the prolonged delay in concluding the matter, it was just and expedient to allow the plaintiffs to proceed by way of formal proof and to serve the defendants by registered post. The court also recognized the right of the defendants to participate in the proceedings should they demonstrate interest, considering the significant lapse of time since judgment. The court further directed that the defendant’s insurers be served with the hearing notice and that the hearing date be prioritized due to the age of the case.
Court Disposition
Application allowed as prayed.
Orders
- Leave granted to proceed by way of formal proof hearing.
- Leave granted to serve the defendants by registered post.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO.484 OF 2002
NYOIKE WAWERU & PENNINAH WANJIRU WANYOIKE
(suing in their capacity as the father and mother/ legal
Representatives of the estates of deceased
JAMES CHEGE WANYOIKE ……………………..…….……PLAINTIFFS
VERSUS
ZAVERA NKUBU NKUBITU ……….………………………..1ST DEFENDANT
SIMON WANYOIKE WANGOI………………..………….......2ND DEFENDANT
RULING
The application dated 13th July 2015 is made exparte seeking leave to proceed by way of formal proof hearing and leave to serve the defendants by registered post.
I note that the exparte judgment was entered on 2nd December 2003 and to date, the matter has not been heard and or determined. Suit was filed in 2002.
In the premises, and due to lapse of time, I direct that application herein be and is hereby allowed as prayed.
Nonetheless, should the defendants demonstrate interest in defending this suit since the exparte judgment was entered over 12 years ago, they shall be allowed to participate in the proceedings. I also direct that the defendant’s insurers Occidental Insurance Company Ltd be served with the hearing notice.
Hearing date to be taken at the registry on priority basis due to the age of the matter.
R.E. ABURILI
JUDGE
1/10/2015