[2002] KEHC 916 (KLR)
The court found that although it has discretion to set aside ex parte orders, the applicant delayed for over one month before filing the application. By the time the application was made, the orders sought to be set aside had already been executed or complied with, including payment to court and filing of...
Source-derived case information.
- Citation
- [2002] KEHC 916 (KLR)
- Parties
- Applicant: Tudor Security Services Limited; Respondent: Jones Kimondo Wambua
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 257 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application dismissed with costs
- Legal Topics
- Setting Aside Ex Parte Orders, Court Discretion, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Tudor Security Services Limited
Applicant
Jones Kimondo Wambua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the court should set aside ex parte orders granted to the respondent on 4.12.2001.
- 2 Whether the delay of over one month in filing the application to set aside the orders is excusable.
Ratio Decidendi
The court found that although it has discretion to set aside ex parte orders, the applicant delayed for over one month before filing the application. By the time the application was made, the orders sought to be set aside had already been executed or complied with, including payment to court and filing of appearance. The court held that the delay was considerable and unjustified, and that the applicant could raise the issue in a cross petition in the pending appeal. Therefore, the application to set aside the ex parte orders was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the ex parte orders is dismissed with costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA MISCELLANEOUS CIVIL APPLICATION NO. 257 OF 2001
TUDOR SECURITY SERVICES LIMITED ………………………………APPLICANT
VERSUS
JONES KIMONDO WAMBUA ……………………………………………RESPONDENT
RULING
This Notice of Motion is filed under Order 50 rule 17, Order 50 rule 1, Section 3A Civil Procedure Act. The application was filed on l6. l.2002 to set aside orders made on 4. 12. 2001. This was one month after the order was made.
The record shows hat on 28. 11. 2001 an application of which the orders were made was fixed for hearing on 4. 12. 2001 by consent of counsel for both parties. On that day counsel for the applicant did not appear in court nor did she send a representative. She says she failed to appear because she had not entered the matter in her diary for that day but on the following day 5. 12. 2001. She also states that on 4. 12. 2001 she had traveled to Malindi to attend to SPMC 288/1998. She now seeks to set aside the orders granted to the respondent on that day in the court of Hon. Judge Ouna. Compliance of which orders the respondent had already on 28. 12. 2001 paid to court Shs.100,000/= as per receipt B212527 and had filed a memorandum of appearance on 6. 12. 2001.
The court has discretion to set aside orders obtained exparte whether under Order 50 Rule 17 or any other orders. In this case there was considerable delay of over one month before this application was made by which the it can be said that the orders sought to be set aside had been executed or complied with. There is now an appeal filed and the applicant may if considers appropriate raise the issue of the orders in a cross petition. For these reasons I dismiss the application with costs.
Dated this 24th day of October 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE