[2018] KEHC 8309 (KLR)
The court found that there was no evidence that summons to enter appearance had been served upon the 1st defendant. The only document on record was a notice of appointment of advocate, which does not amount to an appearance as required by the Civil Procedure Rules. Since service of summons is what triggers the...
Source-derived case information.
- Citation
- [2018] KEHC 8309 (KLR)
- Parties
- Plaintiff: Winnie Naisianoi Shena; Plaintiff: Alfred Obuya Obengo; Plaintiff: George Onyango Odhiambo; Plaintiff: Halima Adan Yusuf; Plaintiff: Stephen K. Rutere; Plaintiff: Francis Nyabuto; Plaintiff: Boniface Wachira; Plaintiff: Stephen Nganga; Plaintiff: Collins Otieno; Plaintiff: Jacinta Moki; Plaintiff: Jael Ochieng; Defendant: Nation Media Group Limited; Defendant: Jeremiah Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 235 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- Application to set aside interlocutory judgment allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Interlocutory Judgment, Service of Summons, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Naisianoi Shena
Plaintiff
Alfred Obuya Obengo
Plaintiff
George Onyango Odhiambo
Plaintiff
Halima Adan Yusuf
Plaintiff
Stephen K. Rutere
Plaintiff
Francis Nyabuto
Plaintiff
Boniface Wachira
Plaintiff
Stephen Nganga
Plaintiff
Collins Otieno
Plaintiff
Jacinta Moki
Plaintiff
Jael Ochieng
Plaintiff
Nation Media Group Limited
Defendant
Jeremiah Maina
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether interlocutory judgment can stand where there is no evidence of service of summons to enter appearance upon the defendant.
- 2 Whether a notice of appointment of advocate constitutes an appearance under the Civil Procedure Rules.
Ratio Decidendi
The court found that there was no evidence that summons to enter appearance had been served upon the 1st defendant. The only document on record was a notice of appointment of advocate, which does not amount to an appearance as required by the Civil Procedure Rules. Since service of summons is what triggers the obligation to enter appearance and file a defence, the interlocutory judgment entered against the 1st defendant for failure to file a defence was irregular and could not be sustained. The court therefore set aside the interlocutory judgment and directed that the plaintiffs serve summons upon the 1st defendant within 14 days, after which the 1st defendant would be required to enter...
Court Disposition
Application to set aside interlocutory judgment allowed.
Orders
- The interlocutory judgment entered against the 1st defendant is set aside.
- The plaintiffs/respondents shall serve summons to enter appearance upon the 1st defendant within 14 days.
Full Case Text
Judgment text and source record
28 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 235 OF 2015
WINNIE NAISIANOI SHENA
ALFRED OBUYA OBENGO
GEORGE ONYANGO ODHIAMBO
HALIMA ADAN YUSUF
STEPHEN K. RUTERE
FRANCIS NYABUTO
BONIFACE WACHIRA
STEPHEN NGANGA
COLLINS OTIENO
JACINTA MOKI
JAEL OCHIENG................................................RESPONDENTS
VERSUS
NATION MEDIA GROUP LIMITED
JEREMIAH MAINA..............................................DEFENDANT
RULING
The plaintiffs sued the defendants for damages following a publication in the Daily Nation a newspaper owned by the 1st defendant. The record shows that the plaintiffs obtained judgment against the 1st defendant on 18th February, 2016 for failure to file a defence within the prescribed period.
There is now before me an application dated 16th June, 2017 by way of Notice of Motion seeking an order that the interlocutory judgment entered herein be set aside and the 1st defendant be served with summons to enter appearance.
The grounds upon which the application is based are set out on the face of the application alongside an affidavit sworn by the legal officer of the 1st defendant. The application was served but there is no reply on the court record.
Counsel for the 1st defendant has submitted that the interlocutory judgment was irregular as no summons to enter appearance was ever served upon the 1st defendant. The averments in the affidavit have not been contradicted or controverted by the respondents herein.
I have also perused the court file and there is no evidence whatsoever that summons to enter appearance was ever served upon the 1st defendant. What there is, is a Notice of Appointment of Advocate by counsel for the 1st defendant. A notice of appointment is not an appearance under the Civil Procedure Rules.
The entry of the interlocutory judgment relating to failure to file a defence cannot be sustained without evidence of service of such summons. It is the service of summons to enter appearance that triggers the filing of a defence after entering appearance. The entry of an appearance is an acknowledgement by a party that a cause of action impacting on it has been received. That is not the case in this matter.
The court is left with no alternative but to set aside the said interlocutory judgment which I hereby do. The plaintiffs/respondents shall cause summons to be served upon the 1st defendant within 14 days of today after which the 1st defendant shall enter appearance and file a defence within 14 days. This order shall be served upon the counsel for compliance. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 22nd Day of February, 2018.
A. MBOGHOLI MSAGHA
JUDGE