[2004] KEHC 2070 (KLR)
The court found that the Defendant failed to provide a satisfactory explanation for the delay of more than five years in seeking to set aside the default judgment. The Defendant's claim regarding improper service was unconvincing, as the law at the time did not require an affidavit of service in the form alleged....
Source-derived case information.
- Citation
- [2004] KEHC 2070 (KLR)
- Parties
- Plaintiff: Trade Bank Limited; Defendant: Classic Printers Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 844 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Default Judgment, Setting Aside Judgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trade Bank Limited
Plaintiff
Classic Printers Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the default judgment entered against the Defendant should be set aside or varied.
- 2 Whether service of summons by registered mail was proper and whether the Defendant was duly served.
- 3 Whether the Defendant's delay in seeking to set aside the judgment is excusable.
Ratio Decidendi
The court found that the Defendant failed to provide a satisfactory explanation for the delay of more than five years in seeking to set aside the default judgment. The Defendant's claim regarding improper service was unconvincing, as the law at the time did not require an affidavit of service in the form alleged. The court determined that the Defendant's actions amounted to a calculated attempt to delay justice and that there was no sufficient reason to justify setting aside the regularly issued decree. Consequently, the application to set aside or vary the default judgment was dismissed with costs to the Plaintiff.
Court Disposition
application dismissed with costs
Orders
- The application dated 28/8/01 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 844 OF 1995
TRADE BANK LIMITED……………………….PLAINTIFF
V E R S U S
CLASSIC PRINTERS LIMITED………………DEFENDANT
R U L I N G
On the Application dated 28/8/01
Defendant filed Chamber Summons on 28/8/01 seeking several orders all under Certificate of Urgency the main of which is numbered (e) to set aside or vary default judgment entered against the Defendant and all consequential decrees or orders. The grounds upon which it is sought are set out on the application and in the supporting affidavit of Shirish Patel. The most relevant ground is that the summons was served by registered mail and hence never received by Defendant, the delay in filing defence is excusable. That the judgment amount is colossal. It is sworn that the affidavit of service by Liverson Babu Mdoma is not sworn as required by law.
The Respondent’s reply to this is that the law by the date Return of Service was made did not required an affidavit of service.
In reply the Respondent shows that the Defendant is guilty of laches and inordinate delay of more than five years before seeking to set aside judgment.
I have perused the supporting affidavit and the Reply thereof, I am of the view that the Defendant is not serious in this matter. It has adopted a calculated move to delay the cause of justice thereby causing delay in execution of decree issued regularly by this court.
The Defendant has been holding an exparte order since 31/8/01. That the Plaintiff was in receivership is not relevant. The suit was not against the Bank.
After consideration of all matters and arguments of parties I find no reason to justify the setting aside of orders as prayed.
The application dated 28/8/02 is hereby dismissed with costs.
Dated at Mombasa this 13th day of February, 2004.
JOYCE KHAMINWA
J U D G E
Read in presence of: Mr. Kasmani on 13/2/2004.
JOYCE KHAMINWA
J U D G E