Automated Summary
Key Facts
The case involves Polly Jennifer Mwonjaru and Mildred Kagure Macharia (claimants) seeking to uphold an ex parte judgment in their favor against Vision Empowerment Training Institute and Pearls of Knowledge (NGO). The respondents argued they were never served with the claim and that the claim was frivolous, citing contradictions in affidavits sworn by Judy Mueni Kituto. The court dismissed the respondents' application to set aside the judgment and ordered Kituto to explain discrepancies in her sworn statements regarding service of the claim. The claimants provided service as tutors for less than three months at Kshs.10,000 each, and the respondents claimed the Kshs.341,745 attachment amount was fabricated.
Issues
- The court must determine whether the Respondents' application to set aside the ex parte judgment in favor of the Claimants is valid, considering their claims of misrepresentation, non-disclosure, and half-truths in the Claimants' response. The Respondents argue the judgment was improperly obtained, while the Claimants assert the application is an abuse of the court process.
- The court addresses the credibility of the Respondents' affidavits, particularly the sharply divergent averments by Judy Mueni Kituto about service of the claim. These contradictions raise concerns about perjury, leading to an order for her to explain the discrepancies in person.
- A key issue is whether the Respondent Vision Empowerment Training Institute was properly served with the claim and summons. The Claimants allege service was provided, but the Respondents claim they were never served and were surprised by the auction. The court examines affidavits to resolve this contradiction.
Holdings
The court dismissed the Respondents' application dated 4th July 2016 with costs to the Claimants. The deponent Judy Mueni Kituto was summoned to appear in person on 20th July 2017 to explain contradictions in her affidavits regarding the service of the claim.
Remedies
- Judy Mueni Kituto is hereby summoned to appear before the Court in person on 20th July 2017 to explain the apparent contradiction on the issue of service of the claim in her two affidavits.
- The Respondents' application dated 4th July 2016 is dismissed with costs to the Claimants.
Legal Principles
The court applied the principle that discretion to set aside an ex parte judgment should be exercised to avoid injustice or hardship caused by accident, inadvertence, or excusable mistake, not to assist parties deliberately obstructing justice (citing Shah v Mbogo & another (1967) EA).
Precedent Name
Shah v Mbogo & another
Judge Name
- Nzioki wa Makau J
- Linnet Ndolo
Passage Text
- a) The Respondents' application dated 4th July 2016 is dismissed with costs to the Claimants;
- reference was made to the decision in Shah v Mbogo & another (1967) EA where it was held that the discretion of the Court to set aside an ex parte judgment is to be exercised so as to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake.
- "That I do confirm that the 1st Respondent, myself, or any office within the institution did not receive any pleadings pertaining to the claim..." (paragraph 4.10) and "THAT there was an omission on the part of our staff..." (paragraph 4.12)