Wamka Supplies Limited & 2 others v Ga Life Assurance Limited (Environment and Land Appeal E001 of 2022) [2023] KEELC 17861 (KLR) (8 June 2023) (Ruling)

Summary at a glance

Facts

The Appellants filed a Notice of Motion seeking various interim and final orders, including an interim stay of execution of a judgment against them, setting aside the judgment, and granting leave to file a reply to the counterclaim.

Issues

• The learned trial Magistrate erred in law and fact by failing to find that the counterclaim was wrongly entered against the 2nd and 3rd Appellants who had not been served with summons and entered appearance.
• The learned trial Magistrate erred in law and fact in failing to set aside the proceedings of August 19

Reasoning

The Court found the trial Magistrate erred in law and fact by not addressing the Appellants' lack of service and appearance, and by not setting aside the proceedings.

Outcome

Appeal Succeeds

Orders

• The Ruling dated December 9, 2021, and the Judgment delivered on September 23, 2021, and all its consequent orders be and are hereby set aside in their entirety.
• The parties are directed to take steps to fix the matter for hearing on a priority basis.
• The Appellants shall pay throw away costs in the sum of Kshs 20,000/- payable to the Respondent within a period of 15 days in default the orders shall automatically lapse.

Remedies

• Set aside the Ruling and Judgment and their consequent orders.
• Fix the matter for hearing on a priority basis.
• Pay throw away costs.