[2012] KEHC 811 (KLR)
The court found that the ex parte judgment was entered prematurely and possibly irregularly, as there was no evidence that summons to enter appearance had been served on the defendant. Additionally, the court had previously ordered consolidation of this suit with another, making the request for final judgment two...
Source-derived case information.
- Citation
- [2012] KEHC 811 (KLR)
- Parties
- Plaintiff: Peter Gakungi Kuria; Defendant: John Wachira Mugo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 661 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application to set aside ex parte judgment granted; defendant allowed to defend the claim; costs in the cause.
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Service of Summons, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gakungi Kuria
Plaintiff
John Wachira Mugo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside for irregularity of service of summons.
- 2 Whether the defendant should be allowed to defend the claim unconditionally.
- 3 Whether the issue of res judicata raised in the draft defence warrants a hearing.
Ratio Decidendi
The court found that the ex parte judgment was entered prematurely and possibly irregularly, as there was no evidence that summons to enter appearance had been served on the defendant. Additionally, the court had previously ordered consolidation of this suit with another, making the request for final judgment two weeks later improper. The draft defence raised the issue of res judicata, which the court considered substantial enough to warrant a hearing. Exercising its discretion under Order IXA Rule 11 of the Civil Procedure Rules, the court held that the application to set aside the ex parte judgment was merited and granted the relevant prayers, allowing the defendant to defend the claim.
Court Disposition
Application to set aside ex parte judgment granted; defendant allowed to defend the claim; costs in the cause.
Orders
- Prayers (2), (3) and (5) of the Chamber Summons dated 30th March, 2010 are granted as prayed.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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PETER GAKUNGI KURIA…………………………………………PLAINTIFF
VERSUS
JOHN WACHIRA MUGO…………….………………………….DEFENDANT
RULING
By this application, the Defendant prays for, inter alia, orders for a temporary stay of execution of the ex parte judgment entered herein; that the said judgment be set aside and the Defendant be allowed to unconditionally defend this claim. The application is made by a Chamber Summons dated 30th March, 2010 and taken out under Order IXA Rules 10 and 11 of the Civil Procedure Rules, and Section 63(e), 1A and 3A of the Civil Procedure Act.
The application is supported by the annexed affidavit of Johnson Wachira and is based on the grounds that, inter alia, the said ex parte judgment was obtained irregularly as the summons to enter appearance was never effected on the defendant; there is a pending application to strike out the Plaint; the orders and directions issued by the court on 8th July, 2009 have not been complied with; the Defendant has an arguable case, and that the Plaintiff will not suffer any prejudice if the judgment is set aside.
After considering the pleadings and the submissions of the rival parties, I hasten to observe that this application is made under Order IXA Rules 10 and11 of the Civil Procedure Rules. Rule 11 in particular gives the court a wide discretion to set aside any judgment entered under this order and any consequential decree upon such terms as are just. Although the rule does not set out the circumstances which ought to be considered in the exercise of that discretion, the Applicant contends that the judgment herein was entered irregularly as the summons to enter appearance was never served on the Defendant. Furthermore, there is on record an order of the court made on 8th July, 2009 consolidating this case with HCCC No. 23 of 2008. It was therefore premature to request for final judgment in this matter two weeks after that order for consolidation.
In the draft defence which is attached to the application, I note that the Defendant raises an issue of the suit being res judicata. I think that it is imperative for such an issue to be allowed to be ventilated because if it succeeds, it has the potential to have the case struck out altogether.
For these reasons, I find that the application is merited. Prayers (2), (3) and (5) of the application by Chamber summons dated 30th March, 2010 are accordingly granted as prayed. Costs in the cause.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 5th day of November, 2012.
ODUNGA
JUDGE