[2002] KEHC 709 (KLR)
The court found that there was no evidence that the defendant or his advocate was served with the court order requiring the supply of particulars. It would be contrary to the principles of justice to penalize the defendant for non-compliance with an order he was unaware of. The court also noted that the defendant...
Source-derived case information.
- Citation
- [2002] KEHC 709 (KLR)
- Parties
- Plaintiff: Planet International Ltd.; Defendant: Edward Oluoch Odumbe t/a Vivation Electricals & Hardware Supplies
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 259 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Decree and Execution Proceedings
- Outcome
- application allowed; decree and execution proceedings set aside; extension of time granted
- Legal Topics
- Setting Aside Decree, Service of Orders, Extension of Time, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Planet International Ltd.
Plaintiff
Edward Oluoch Odumbe t/a Vivation Electricals & Hardware Supplies
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Decree and Execution Proceedings
Legal Issues
- 1 Whether the decree and execution proceedings should be set aside due to lack of notice to the defendant.
- 2 Whether the defendant should be granted extension of time to supply particulars as previously ordered by the court.
Ratio Decidendi
The court found that there was no evidence that the defendant or his advocate was served with the court order requiring the supply of particulars. It would be contrary to the principles of justice to penalize the defendant for non-compliance with an order he was unaware of. The court also noted that the defendant may have been let down by his advocate. Consequently, the decree and all execution proceedings were set aside, and the defendant was granted an extension of time to comply with the order to supply particulars.
Court Disposition
application allowed; decree and execution proceedings set aside; extension of time granted
Orders
- Decree and all execution proceedings are set aside.
- The defendant is granted an extension of 7 days from the date of this ruling to supply particulars as ordered on 6/11/2000.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO.259 OF 2000
PLANET INTERNATIONAL LTD. …..……. PLAINTIFF
VERSUS
EDWARD OLUOCH ODUMBE t/a
VIVATION ELECTRICALS &
HARDWARE SUPPLIES ……………… DEFENDANT
R U L I N G
The Applicant is the Defendant in this case. He entered appearance by his advocate J.J. Weloba who also filed defence. By application dated 8/9/2000 Mr. Weloba sought leave to withdraw from acting for the Defendant which leave was granted on 6. 11. 2000. Earlier on the same date Mr. Taib for Plaintiff had obtained orders in application dated 19/9/2000 for supply of particulars. This application was heard exparte since the other side did not appear. In default of supplying particulars within 14 days the court has ordered that the defence shall stand struck off.
The Defendant did not supply particulars as ordered and it appears the Plaintiff immediately moved to execute decree.
The Defendant now applies to set aside that decree on the grounds that he was not made aware of the order of the court made on 6/11/2000 and that he is ready and willing to supply the same. His affidavit in support shows that he was not notified of the order of the court. The warrant of attachment was signed on 5/1/2001.
On 12/1/2001 the Applicant was visited by auctioneers. He came to know that his advocate had abandoned his case when he visited him on 16/1/2001 and learned of the orders. He now says he is ready and willing to supply particulars and he has engaged a new advocate. This application is objected to by the Respondent who states he sent notice of decree to applicant by letter dated 14. 9.2000 to post office Box Number 39826 Nairobi which address the Applicant says it is not the correct address. He has given his address as 39240 Nairobi. The Respondent does not show that he served the order upon the Applicant or his advocate and in the circumstances it would be contrary to the principles of justice to condemn the applicant for not having obeyed the order he was not aware of. Again it may be he was let down by his advocate who should probably have put more effort to get in touch with his client.
In the circumstances I set aside decree and all execution proceedings. The Applicant is granted extension of time to comply with court order as to supply of particulars made on 6/11/2000 within the next 7 days from the date of this ruling.
Costs shall be in the cause.
Dated at Mombasa this 3rd Day of May, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of: Mr. Omollo
Mr. Mwinyi
J. KHAMINWA COMMISSIONER OF ASSIZE