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Karatina Garments Ltd v. David Nyanarua

(1976) JELR 100237 (CA)

Court of Appeal  •  Civil Appeal 6 of 1976  •  30 Apr 1976  •  Kenya

Coram
Abdulla Mustafa, Justin Saulo Musoke, Samuel William Wako Wambuzi

Judgement

JUDGMENT OF THE COURT

The appellant filed a suit in the High Court claiming the sum of Shs 62,701 from the respondent under the Transfer of Businesses Act. The respondent did not enter appearance and judgment was entered against him in default on 8th May 1975. The respondent applied to the High Court to set aside the judgment on the ground that he had not been served with any summons in connection with the suit. The High Court allowed the application and set aside the judgment on 13th August 1975. It is against this decision that the appellant now appeals to this Court.

The respondent’s application before the High Court was supported by an affidavit dated 22nd July 1975 in which he denied the appellant’s claim and denied having been served with a summons or the plaint in the suit. He claimed that he had a good defence. On the other hand, the process server employed by the appellant’s advocates deponed in his affidavit dated 29th July 1975 that he had served the respondent at his place o…

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