[2024] KEHC 14206 (KLR)
The court found that although the applicants failed to file evidence of service at the time of the initial application, they subsequently provided an affidavit of service demonstrating efforts to serve the defendants, whose advocates had withdrawn. The court exercised its discretion to set aside the order dismissing...
Source-derived case information.
- Citation
- [2024] KEHC 14206 (KLR)
- Parties
- Plaintiff: Ridhwan Trading Company Limited; Plaintiff: Suleiman Noor Osman; Defendant: Zarah Omar Mbarak; Defendant: Family Bank Kenya Limited; Defendant: Okoth Mark Okello; Defendant: Richard Odhiambo Otieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 26 of 2017
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Suit
- Outcome
- Application allowed; suit and application reinstated; substituted service ordered.
- Judges
- RE Aburili
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ridhwan Trading Company Limited
Plaintiff
Suleiman Noor Osman
Plaintiff
Zarah Omar Mbarak
Defendant
Family Bank Kenya Limited
Defendant
Okoth Mark Okello
Defendant
Richard Odhiambo Otieno
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal and Reinstate Suit
Legal Issues
- 1 Whether the order dismissing the suit for non-service should be set aside and the suit reinstated.
- 2 Whether the applicants demonstrated sufficient cause for failure to serve the application on the defendants.
- 3 Whether substituted service is appropriate in the circumstances.
Ratio Decidendi
The court found that although the applicants failed to file evidence of service at the time of the initial application, they subsequently provided an affidavit of service demonstrating efforts to serve the defendants, whose advocates had withdrawn. The court exercised its discretion to set aside the order dismissing the suit for non-service and reinstated both the application and the suit. The court further directed that substituted service be effected through advertisement in newspapers of nationwide circulation and by use of the defendants' last known postal addresses and WhatsApp numbers. The court emphasized that the applicants' omission was not deliberate and that justice would be...
Court Disposition
Application allowed; suit and application reinstated; substituted service ordered.
Orders
- Order of 4th November 2024 dismissing the application for non-service is set aside.
- Application dated 2nd August 2024 is reinstated.
Full Case Text
Judgment text and source record
32 paragraphs
Ridhwan Trading Company Limited & another v Mbarak & 3 others (Civil Suit 26 of 2017) [2024] KEHC 14206 (KLR) (13 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14206 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Suit 26 of 2017
RE Aburili, J
November 13, 2024
Between
Ridhwan Trading Company Limited
1st Plaintiff
Suleiman Noor Osman
2nd Plaintiff
and
Zarah Omar Mbarak
1st Defendant
Family Bank Kenya Limited
2nd Defendant
Okoth Mark Okello
3rd Defendant
Richard Odhiambo Otieno
4th Defendant
Ruling
1. I have considered the application dated 12th November 2024 filed under certificate of urgency. I find no urgency involved. I do not certify it as urgent.
2. I have perused the grounds and affidavit in support. The application seeks orders for setting aside the order of dismissal for non-service upon the Defendants made on 4th November 2024 in the presence of Mr. Odhiambo counsel for the applicant who did not have evidence of service of the application upon the Defendants.
3. I have now been shown an affidavit of service sworn by Moses Musembi Nzomo process server on 12th November 2024 deposing that the applicants made effort to serve the Defendants whose advocates withdrew from acting for them, in vain.
4. The applicants admit that it was their fault not to file into court evidence of efforts made to serve the application hence, the dismissal of the suit for non-service.
5. The affidavit of service is sworn on 12th November 2024. I shall give the Applicants the benefit of doubt. I exercise discretion, review and set aside the order of 4th November 2024 dismissing the application of non-service and reinstate the application dated 2nd August 2024.
6. Having reinstated the application dated 2nd August, 2024, I proceed and set aside the order of 15th May 2024 dismissing this suit for non-attendance to prosecute and substitute thereof with an order reinstating the suit.
7. I further direct the Applicants to serve the defendants by way of substituted service by an advertisement in daily newspapers of nationwide circulation as well as through the defendant’s last known postal addresses and or WhatsApp numbers for the hearing of the suit in the new term on 24th February 2025.
8. I so order.
9. Ruling to be typed and uploaded.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13THDAY OF NOVEMBER, 2024R. E. ABURILIJUDGE