GODFREY MWIRIGI MBUTURA & 2 OTHERS V SASANET LIMITED & ANOTHER [2012] KEHC 3667 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Suit 608 of 2007

GODFREY MWIRIGI MBUTURA …………………........………… 1 ST PLAINTIFF/APPLICANT

MARY NJERI MBURU …………………………..…..………….... 2ND PLAINTIFF/APPLICANT

MERCY N. KANYARA ……………………………….………….. 3RD PLAINTIFF/APPLICANT

VERSUS

SASANET LIMITED ……………….………………………… 1ST DEFENDANT/RESPONDENT

SASANET INVESTMENTS

CO-OPERATIVE SOCIETY LTD ………..……....…………. 2ND DEFENDANT/RESPONDENT

AND

BANK OF INDIA ……………………………......................……….…………. 1ST GARNISHEE

DUBAI BANK (K) LIMITED ……………….......................……….…..…….. 2ND GARNISHEE

RULING

On 19th March, 2008 the defendants filed an application seeking, inter alia, to set aside the ex parte judgment entered against them in this matter. In a ruling delivered on 25th August, 2010 the court set aside the ex parte judgment and directed that a defence be filed within 15 days from the date of the said ruling. The ruling was delivered by Koome, J. (as she then was), on behalf of Mwilu, J. who had been transferred to another station.

On 2nd May, 2012 the plaintiffs filed an application seeking reinstatement of the ex parte judgment on the ground that the defendants had failed to file any defence. The defendants, through their advocate, Mrs. Gatu Magana, filed a replying affidavit and stated that when they argued their application before Mwilu, J. the judge set the date for delivery of her ruling as 3rd June, 2008. On that day Mrs. Magana travelled from Nakuru where she practices to Nairobi but the ruling was not delivered. She did not receive any notice thereafter of delivery of the ruling and was not aware that the ruling had been delivered until she was served with the plaintiffs’ application. She further stated that the defendants are desirous and keen on defending this suit as they contend that they do not owe any money at all to the plaintiffs. The defendants filed a statement of defence together with their replying affidavit.

Although Ms. Oluoch for the plaintiffs told the court that notice of delivery of the ruling was served upon all the parties, she did not adduce any evidence in support of that contention. I perused the court file and there is no indication that any notice of delivery of the ruling was served upon the defendants’ advocates. The record shows that the ruling was delivered in the absence of the defendants’ counsel.

In the circumstances, the defendants cannot be faulted for having failed to file their statement of defence within the stipulated period of time. Consequently, I dismiss the plaintiffs’ application dated 24th April, 2012. I further direct that counsel do file their respective documents and comply with all pre-trial steps within the next 30 days from the date hereof so that this matter can be heard on priority basis. Mention on 31st July, 2012 with a view to fixing a hearing date.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2012.

D. MUSINGA

JUDGE

In the presence of:

Muriithi – Court Clerk

Mr. Kipngeno for the 2nd Garnishee

No appearance for the Plaintiffs

No appearance for the Defendants

No appearance for 1st Garnishee