[2015] KEHC 3160 (KLR)
The court found that the applicant was duly served with the suit papers, as previously established in the judgment of Omollo J. There was no appeal against this finding of fact. Since service was properly effected and the applicant failed to appear or participate in the proceedings, there is no basis to set aside...
Source-derived case information.
- Citation
- [2015] KEHC 3160 (KLR)
- Parties
- Applicant: Simiyu Musanga Ndombi; Respondent: Marcella Nabukuto Patroba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 332 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Setting Aside Judgment
- Outcome
- application dismissed with costs to the respondent
- Judges
- SN Mukunya
- Legal Topics
- Service of Process, Setting Aside Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simiyu Musanga Ndombi
Applicant
Marcella Nabukuto Patroba
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Setting Aside Judgment
Legal Issues
- 1 Whether the applicant was duly served with suit papers before judgment was entered against her.
- 2 Whether lack of service justifies setting aside the judgment and all consequential orders.
- 3 Whether a stay of execution of the decree should be granted.
Ratio Decidendi
The court found that the applicant was duly served with the suit papers, as previously established in the judgment of Omollo J. There was no appeal against this finding of fact. Since service was properly effected and the applicant failed to appear or participate in the proceedings, there is no basis to set aside the judgment or grant a stay of execution. The application is therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution and setting aside judgment is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT & LAND CASE NO.332 OF 2013
SIMIYU MUSANGA NDOMBI………………………..…...…………..PLAINTIFF
VERSUS
MARCELLA NABUKUTO PATROBA…………………..…………DEFENDANT
RULING
[1].The applicant prays that this Court do grant a stay of execution of the decree made on 12/11/2004 and that the Court do set aside the order the judgment entered against her and all consequential orders made herein.
He sets various grounds to support her claim. Of all those grounds the only ground worth considering is ground (g).
[2].This ground deals with the allegation that he was not served with the suit papers. He seems to argue that, that lack of service made a judgment be entered against him.
The respondent has denied this claim and has averred that indeed the applicant was indeed served.
[3].To that end, the respondent has sworn an affidavit sworn on 23rd December 2014. In that affidavit the respondent has said that the applicant was served.
This Court Omollo J in her judgment dated 17/7/2014 stated;
“The defendant failed to enter appearance even after being served with summons andnotice of hearing. This Court then proceededby way of formal proof after establishing fromthe record that the defendant was duly served”
[4].There is no appeal from this finding of fact from the Court. This case proceeded after service was established by the Court.
The applicant having been served and she refused to come to Court her application must fail.
I dismiss it with costs to the respondent.
DATED at BUNGOMA this 23rd day of July,2015
S. MUKUNYA
JUDGE