[2005] KEHC 1505 (KLR)
The court found that service of the hearing notice on a nameless clerk, who may not have had authority to accept service, was insufficient. The court exercised its discretion to set aside the ex parte order of 15.4.2005, holding that the application of 3.4.2003 should be heard on its merits. The error in citing the...
Source-derived case information.
- Citation
- [2005] KEHC 1505 (KLR)
- Parties
- Plaintiff: William K. Mwangangi; Plaintiff: Amos Kinuthia Njuguna; Plaintiff: Andrew Savi Kyengo; Defendant: City Council of Nairobi; Defendant: Councillor Kamau Kabiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 982 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Order
- Outcome
- Application to set aside ex parte order allowed.
- Judges
- PJ Ransley
- Legal Topics
- Setting Aside Orders, Service of Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William K. Mwangangi
Plaintiff
Amos Kinuthia Njuguna
Plaintiff
Andrew Savi Kyengo
Plaintiff
City Council of Nairobi
Defendant
Councillor Kamau Kabiru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Order
Legal Issues
- 1 Whether the hearing notice was properly served on the defendant.
- 2 Whether the court should exercise its discretion to set aside the ex parte order of 15.4.2005.
- 3 Whether the application was brought under the correct provision of the Civil Procedure Rules.
Ratio Decidendi
The court found that service of the hearing notice on a nameless clerk, who may not have had authority to accept service, was insufficient. The court exercised its discretion to set aside the ex parte order of 15.4.2005, holding that the application of 3.4.2003 should be heard on its merits. The error in citing the wrong procedural rule was not fatal to the application, and justice required that the defendant be given an opportunity to respond to the application on its merits.
Court Disposition
Application to set aside ex parte order allowed.
Orders
- The ex parte order of 15.4.2005 is set aside.
- The application of 3.4.2003 shall be heard on its merits.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 982 of 2002
WILLIAM K. MWANGANGI…………..………………1ST PLAINTIFF AMOS KINUTHIA NJUGUNA …………..…….....….. 2ND PLAINTIFF ANDREW SAVI KYENGO …………………..….....… 3RD PLAINTIFF VERSUS CITY COUNCIL OF NAIROBI……….……………. 1ST DEFENDANT COUNCILLOR KAMAU KABIRU ……………….. 2ND DEFENDANT
RULING
The Applicant seeks to set aside my orders of the 15. 4.2005 on the grounds that the hearing notice was not properly served, as it was served on a clerk to Mr. Munyala Musundi had been interdicted on the 8. 9.2004.
The Applicant says it has a good defence to the Application as it involved the allocation of plots to persons, which is the prerogative of the Defendant/Applicant.
Mr. Ngala opposed the application on the grounds it was brought under the wrong provision of the Civil Procedure Rules. The application should have been brought under O.50 rule 17 however under O.50 rule 12 this is not fatal and I allow the application to be dealt with under this rule.
He also relied on the Replying Affidavit and submits the Defendant is in breach of a Court Order.
Although it is stated the applicant was served on Mr. Mungalla’s Clerk. I am not satisfied that this clerk, who is nameless had authority to accept the Hearing Notice. The Applicant appears to have a reasonable response to the Application of the 3. 4.2003.
The court has a discretion to set aside an order where it is just. In this case I am of the view that the application of 3. 4.2003 should be heard on its merits and therefore set aside my order with costs to the Respondent.
Dated and delivered at Nairobi this 14th day of July, 2005
P.J. RANSLEY
JUDGE