[2010] KEHC 1577 (KLR)
The court found that its previous direction to set down the suit for hearing was made in error, as the suit had already been heard and judgment delivered. The correct course was to complete the hearing of the application to set aside the ex-parte judgment. Therefore, the application for review was allowed, the...
Source-derived case information.
- Citation
- [2010] KEHC 1577 (KLR)
- Parties
- Plaintiff: Stephen Waeru; Defendant: The School Committee Nyandundo Primary School; Defendant: Director of Settlement
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 232 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application for Review and Setting Aside of Prior Order
- Outcome
- application allowed
- Legal Topics
- Review of Court Orders, Ex Parte Judgment, Res Judicata, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Waeru
Plaintiff
The School Committee Nyandundo Primary School
Defendant
Director of Settlement
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review and Setting Aside of Prior Order
Legal Issues
- 1 Whether the court's previous direction to set down the suit for hearing was erroneous given that judgment had already been delivered.
- 2 Whether the application for review and setting aside of the previous order should be allowed.
Ratio Decidendi
The court found that its previous direction to set down the suit for hearing was made in error, as the suit had already been heard and judgment delivered. The correct course was to complete the hearing of the application to set aside the ex-parte judgment. Therefore, the application for review was allowed, the erroneous direction was set aside, and it was substituted with a direction to complete the hearing of the application to set aside the ex-parte judgment.
Court Disposition
application allowed
Orders
- The direction that the suit be set down for hearing is set aside.
- It is substituted with a direction that the hearing of the application to set aside the ex-parte judgment be completed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Suit 232 of 2001
STEPHEN WAERU………………………..……….PLAINTIFF
VERSUS
THE SCHOOL COMMITTEE
NYANDUNDOPRIMARY SCHOOL………1ST DEFENDANT
DIRECTOR OF SETTLEMENT……….......2ND DEFENDANT
RULING
The plaintiff seeks through his application dated 12th July 2010 and brought under Order 44 Rule 1(2) of the Civil Procedure Rules a review and setting aside of the last order in my ruling of 18th November 2009. A brief history of this matter will elucidate the point raised in the application.
On17th February 2003the Honourable Justice Muga Apondi heard this case ex-parte and delivered judgment on17th December 2003in favour of the plaintiff. Subsequently the defendants applied to set that judgment aside. In the course of hearing that application which had been adjourned several times, the defendants raised a preliminary objection that the matter was res judicata. I overruled that preliminary objection and directed that the suit be set down for hearing.
Miss Kabaria’s contention that that direction as it were set aside the ex-parte judgment is erroneous.That direction was obviously inadvertent and in error as the suit had already been heard and judgment delivered.The direction should have been that the hearing of the application to set aside the judgment be completed.In the circumstances I allow this application and set aside the direction that the suit be set down for hearing and substitute therefor a direction that the hearing of the application to set aside the ex-parte judgment be completed.
DATED and DELIVERED this 30th day of July, 2010.
D. K. MARAGA
JUDGE.