[2014] KEHC 234 (KLR)
The court found that the interlocutory judgment entered against the defendants, one of whom is a government officer, was irregular because leave of court had not been obtained as required by Order 10, Rule 8 of the Civil Procedure Rules. The absence of leave rendered the judgment null and void ab initio. The court...
Source-derived case information.
- Citation
- [2014] KEHC 234 (KLR)
- Parties
- Plaintiff: Samwel Thiaine Munyori; Defendant: Land Adjudication & Settlement Officer Tigania West; Defendant: Douglas Mitheu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 168 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Judgment and Service of Suit Papers
- Outcome
- Interlocutory judgment set aside as irregular and null; plaintiff to serve suit papers afresh.
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Judgment, Service of Process, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Thiaine Munyori
Plaintiff
Land Adjudication & Settlement Officer Tigania West
Defendant
Douglas Mitheu
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Judgment and Service of Suit Papers
Legal Issues
- 1 Whether interlocutory judgment could be validly entered against the defendants without leave as required by Order 10, Rule 8 of the Civil Procedure Rules.
- 2 Whether the interlocutory judgment entered was irregular and should be set aside.
Ratio Decidendi
The court found that the interlocutory judgment entered against the defendants, one of whom is a government officer, was irregular because leave of court had not been obtained as required by Order 10, Rule 8 of the Civil Procedure Rules. The absence of leave rendered the judgment null and void ab initio. The court therefore set aside the interlocutory judgment and directed the plaintiff to properly serve the suit papers upon the defendants within 30 days, after which the matter would proceed upon proper service.
Court Disposition
Interlocutory judgment set aside as irregular and null; plaintiff to serve suit papers afresh.
Orders
- The interlocutory judgment entered against the defendants dated 12/5/09 is hereby set aside and declared irregular and hence null and void ab initio.
- The plaintiff should properly serve the suit papers upon the defendants within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 168 OF 2008
SAMWEL THIAINE MUNYORI..................................................PLAINTIFF
VS
LAND ADJUDICATION & SETTLEMENT OFFICER TIGANIA WEST.................................................................................................1ST DEFENDANT
DOUGLAS MITHEU......................................................................2ND DEFENDANT
RULING
The plaintiff came for directions regarding the handling of the Interlocutory Judgment entered against the defendants by this court's Deputy Registrar on 12/5/2009.
One of the defendants is the Land Adjudication and Settlement Officer, Tigania West, and leave as required by order 10, Rule 8,CPR, had not been obtained before the Interlocutory Judgment was entered against the defendants in favour of the plaintiff. In the circumstances, I issue the following orders;
1. The Interlocutory Judgment entered against the defendants dated 12/5/09 is hereby set aside and declared irregular and hence null and void ab initio.
2. The plaintiff should properly serve the suit papers upon the defendants within 30 days.
3. Matter is stood over generally and the plaintiff to obtain a date for directions from the registry once proper service has been achieved.
Delivered in open court at Meru this 28th day of October, 2014 in the presence of;
Cc. Daniel/Lilian
Kimathi Kiara for plaintiff
P. M. NJOROGE
JUDGE