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
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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
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