[2000] KEHC 151 (KLR)
The court found that the defendants were not served with summons to enter appearance, and that the 2nd defendant had not instructed the advocates who purportedly filed an appearance on his behalf. In the interests of justice, the court determined that the ex parte judgment should be set aside and a stay of execution...
Source-derived case information.
- Citation
- [2000] KEHC 151 (KLR)
- Parties
- Plaintiff: Veronica Wambui Muhungi; Defendant: Joseph Mwangi Njenga; Defendant: Unnamed 2nd Defendant; Defendant: Unnamed 3rd Defendant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 6202 of 1992
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- application allowed
- Legal Topics
- Ex Parte Judgment, Service of Summons, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronica Wambui Muhungi
Plaintiff
Joseph Mwangi Njenga
Defendant
Unnamed 2nd Defendant
Defendant
Unnamed 3rd Defendant
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to lack of service of summons on the defendants.
- 2 Whether a stay of execution of the decree should be granted pending determination of the suit.
Ratio Decidendi
The court found that the defendants were not served with summons to enter appearance, and that the 2nd defendant had not instructed the advocates who purportedly filed an appearance on his behalf. In the interests of justice, the court determined that the ex parte judgment should be set aside and a stay of execution granted, as the defendants had not been given an opportunity to be heard. The court exercised its discretion to set aside the judgment to prevent injustice resulting from lack of proper service.
Court Disposition
application allowed
Orders
- The ex parte judgment is set aside.
- There is a stay of execution of the decree.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI HIGH COURT CIVIL CASE NO. 6202 OF 1992
VERONICA WAMBUI MUHUNGI……………………PLAINTIFF -VERSUS- JOSEPH MWANGI NJENGA & 2 OTHERS………DEFENDANT
RULING
The applicant by way of Chamber Summons dated 19. 5.2000 is asking for orders:
(a) For Stay of Execution of the decree
(b) For setting aside the Ex Parte Judgment entered herein.
The grounds in support of the application are that the 1st and the 2nd Defendants were not served with Summons to enter appearance in the suit. According to the affidavit in support by the 2nd Defendant, the Firm of Musyoka & Wambua Advocates had filed appearance but he had not instituted them to act for him in the matter and he was not informed of the suit.
I have considered the contents of this affidavit and it appears that the Defendants were not served with the Summons and for the greater interest of justice, I will allow the application.
The Ex Parte judgment is hereby set aside and there will therefore be a Stay of the Execution of the decree.
The Defendants will however pay the costs of this application.
Dated and delivered this 28th day of July, 2000.
KASANGA MULWA
JUDGE