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Kingsway Tyres & Automart Ltd v. Rafiki Enterprises Ltd

(1996) JELR 99809 (CA)

Court of Appeal  •  Civil Appeal 220 of 1995  •  14 Nov 1996  •  Kenya

Coram
Johnson Evan Gicheru, Samuel Elikana Ondari Bosire, Abdulrasul Ahmed Lakha

Judgement

JUDGMENT OF THE COURT

KINGSWAY TYRES AND AUTO MART LIMITED, the appellant, challenges the exercise of judicial discretion by the High Court (Hayanga, J.), in NAI High Court Civil Case No. 800 of 1995, under O.IXA rules 10 and 11 Civil Procedure Rules. That court granted the defendant's application, set aside the ex parte judgment in default of appearance and consequential orders and ordered that the defence be filed. The appellant argues that the learned Judge, improperly exercised his discretion in the matter in view of clear evidence on record that service of summons to enter appearance and the plaint had been duly effected. On the other hand RAFIKI ENTERPRISES LIMITED, as defendant in the suit but the respondent in this appeal, denies it was ever served with the processes and prays that this appeal be dismissed.

The principles upon which a court exercises its discretionary jurisdiction under O.IXA, as well as O.IXB rule 8, Civil Procedure Rules, are well settled. The jurisdiction is …

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