[2009] KEHC 502 (KLR)
The court found that the defendant, through its director Mr. Newton Kamau, was properly served with summons to enter appearance as evidenced by the affidavit of service and the signed summons. The defendant failed to specifically deny that Mr. Newton Kamau was the person served and did not address the issue of...
Source-derived case information.
- Citation
- [2009] KEHC 502 (KLR)
- Parties
- Plaintiff: Peter Macharia Kinyanjui; Defendant: Truckline Construction Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 379 of 2000
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Conditional grant of application to set aside ex-parte judgment, subject to deposit of decretal sum with interest within 60 days; otherwise, application dismissed with costs.
- Legal Topics
- Setting Aside Ex Parte Judgment, Service of Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Macharia Kinyanjui
Plaintiff
Truckline Construction Co. Ltd
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 lack of service on the defendant.
- 2 Whether the defendant was properly served with summons to enter appearance.
- 3 Whether the defendant's application is made in good faith and merits the court's discretion.
Ratio Decidendi
The court found that the defendant, through its director Mr. Newton Kamau, was properly served with summons to enter appearance as evidenced by the affidavit of service and the signed summons. The defendant failed to specifically deny that Mr. Newton Kamau was the person served and did not address the issue of service directly. The court held that the defendant was less than candid and had not demonstrated sufficient grounds for the exercise of the court's discretion to set aside the ex-parte judgment. However, in the interests of justice, the court granted conditional relief: the application to set aside the judgment would only be allowed if the defendant deposited the decretal sum with...
Court Disposition
Conditional grant of application to set aside ex-parte judgment, subject to deposit of decretal sum with interest within 60 days; otherwise, application dismissed with costs.
Orders
- The defendant shall deposit in court the decretal sum together with interest to date within sixty (60) days of the date hereof.
- If the defendant fails to deposit the decretal sum and interest within sixty (60) days, the application shall stand dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 379 of 2000
PETER MACHARIA KINYANJUI…………..…..PLAINTIFF
VERSUS
TRUCKLINE CONSTRUCTION CO. LTD...…DEFENDANT
RULING
By its Chamber Summons dated 18th June, 2009, the defendant seeks under Order 9 Rules 10 and 11 of the Civil Procedure Rules, the setting aside of the ex-parte judgment entered herein on 1st August 2001 on the ground that it was not served. In the affidavit in support of the application, Mr. Newton Kamau, a director of the defendant company avers that he first knew of this case when he was served with a notice to show cause on a date he has not specified. In the application itself, it is claimed that the defendant knew of this suit from a Good Samaritan.
The application is strongly opposed. Relying on the replying affidavit, Mr. Karanja for the plaintiff submitted that this application is not made in good faith and is only meant to defeat the plaintiff’s efforts to recover the decretal sum.
I have considered the application. The defendant claims that it knew of this suit from a Good Samaritan on a date it has not specified. In the affidavit in support of the application, the deponent, Mr. Newton Kamau, claims that he first knew of this suit when he was served with the Notice to Show Cause. He has also not specified when that was.
In the affidavit of service, the process server stated that on 29th November, 2000, he served the summons to enter appearance in this case on a director of the defendant company, one Mr. Kamau, at the defendant’s offices at Shaabab next to Nakuru Tanners. He has annexed to that affidavit a copy of the summons to enter appearance duly signed by the Kamau who was served. The defendant and its director, Mr. Newton Kamau, have steered clear of that service. They have not refuted that service or said that the Kamau who was allegedly served is not Mr. Newton Kamau who has sworn the affidavit in support of this application. The defendant has not said anything about the attachment of its properties on 31st May, 2005. Its proposed defence is a general denial.
In any application where the applicant seeks the exercise of the court’s discretion in his favour, he must be honest with the court. In this case, taking into account all the matters stated herein above, I am satisfied that the defendant has been less that candid in this matter. I am satisfied and I find that the Kamau who was served with the summons to enter appearance in this case is Mr. Newton Kamau who has now sworn the affidavit in support of this application.
From the foregoing, it follows that the defendant’s application should be dismissed. However, because the defendant claims that the plaintiff was not its employee, I grant this application on condition that the defendant deposits in court the decretal sum together with interest to date within sixty (60) days of the date hereof failing which this application shall stand dismissed with costs.
DATED and delivered this 12th day of November, 2009.
D.K. MARAGA
JUDGE.