[2000] KEHC 494 (KLR)
The court found that the application was fundamentally misconceived because Order IXA rule 10 only applies to judgments entered due to non-appearance or default of defence, which was not the case here. The applicant's reliance on Section 3A of the Civil Procedure Act was also misplaced, as that section cannot be...
Source-derived case information.
- Citation
- [2000] KEHC 494 (KLR)
- Parties
- Applicant: Sotik Dairy Creameries Ltd; Respondent: In the Matter of the Companies Act
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 69 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Order
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Orders, Default Judgment, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sotik Dairy Creameries Ltd
Applicant
In the Matter of the Companies Act
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Order
Legal Issues
- 1 Whether the applicant's application to set aside the court order of 12th July, 2000 was properly brought under Order IXA rule 10 of the Civil Procedure Rules.
- 2 Whether Section 3A of the Civil Procedure Act could be invoked to grant the orders sought when other specific provisions exist.
- 3 Whether the supporting affidavit was admissible.
Ratio Decidendi
The court found that the application was fundamentally misconceived because Order IXA rule 10 only applies to judgments entered due to non-appearance or default of defence, which was not the case here. The applicant's reliance on Section 3A of the Civil Procedure Act was also misplaced, as that section cannot be used where the Civil Procedure Rules provide a specific mechanism for redress. Furthermore, the applicant's supporting affidavit was declared inadmissible due to procedural defects. Consequently, the application to set aside the order was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the order of 12th July, 2000 is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC.APPLICATION NO. 69 OF 2000
SOTIK DAIRY CREAMERIES LTD .............................................PLAINTIFF versus IN THE MATTER OF THE COMPANIES ACT........................DEFENDANT
R U L I N G
The applicant has moved this court by way of a Chamber Summons taken out under Order IXA rule 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
It seeks to have my order, issued on 12th July, 2000 discharged, and set aside that it=s application of 11th February, 2000 be set down for hearing.
The application is opposed.
At the commencement of the hearing, counsel for the respondent raised a preliminary objection. It was his submission that the further affidavit that was sworn by Mr. Koech, the counsel for the applicants was defective. Mr. Arwas objection was based on the facts that the said affidavit tended to support a non existent affidavit and further it was not indicated where it was sworn. Mr. Nabutete did in fact concede to the defects and in the event the affidavit was declared inadmissible. The application is made under Order IXA rule 10, which stipulates that
Awhere judgment has been entered under the order the court may set aside or vary such judgment and any consequential degree or order upon such terms as are just.@
Order IXA is headedAconsequence of non-appearance and default of defence@ Upon perusal of the pleadings and having taken into account the submissions of both account, it is apparent that the application cannot lie under the above order, as it cannot be said that whatever orders were issued by the court had been issued as a consequence of non appearance or default of defence. Indeed, Mr. Nabutete again conceded that he had moved the court under the moving order, but he urged the court to grant him the orders that he sought as his application was also made under Section 3A of the Civil Procedure Act. Unfortunately that line of submission was also bound to fail because Section 3A cannot be invoked in instances which are clearly catered for by otherprovisions of the Civil Procedure Rules. In his case he should have made the application under Order IXB and Section 3A cannot therefore come to his aid. In view of the above, the application is thus dismissed with costs.
Dated and delivered this 28th day of November 2000.
JEANNE W. GACHECHE
COMMISSIONER OF ASSIZE
In the presence of Mr. Nabutete. No appearance for the respondents.