[2017] KEHC 9619 (KLR)
The court found that the judgment in question was delivered after a full hearing in which both the plaintiff and defendants participated and gave evidence. Dissatisfaction with the judgment should have been addressed through an appeal or a review, not by an application to set aside. The provisions of the Civil...
Source-derived case information.
- Citation
- [2017] KEHC 9619 (KLR)
- Parties
- Plaintiff: Abinel Ariga Ogamba; Defendant: The People Ltd; Defendant: Shem Oirere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1161 of 2000
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Setting Aside Judgment, Apportionment of Liability, Defamation, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abinel Ariga Ogamba
Plaintiff
The People Ltd
Defendant
Shem Oirere
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment delivered on 14th September, 2017 should be set aside for failure to apportion liability between the defendants.
- 2 Whether the judgment was irregular or contained errors justifying setting aside.
- 3 Whether the applicant met the conditions for stay of execution.
Ratio Decidendi
The court found that the judgment in question was delivered after a full hearing in which both the plaintiff and defendants participated and gave evidence. Dissatisfaction with the judgment should have been addressed through an appeal or a review, not by an application to set aside. The provisions of the Civil Procedure Rules cited by the applicant did not provide a basis for setting aside the judgment in the circumstances. The court also confirmed that the applicant's advocates were properly on record, having obtained leave of court. Consequently, the application to set aside the judgment was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the judgment is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 1161 OF 2000
ABINEL ARIGA OGAMBA ......................... PLAINTIFF/RESPONDENT
VERSUS
THE PEOPLE LTD ..................................................... 1ST DEFENDANT
SHEM OIRERE.....................................2ND DEFENDANT/APPLICANT
RULING
1. The application dated 19th August, 2016 seeks order that:
“1. Spent.
2. Spent.
3. That this honourable Court be pleased to set aside the entire judgment herein entered against “The Defendant” together with all consequential orders thereto.
4. That costs of this application be provided for.”
2. The application is predicated on the grounds stated therein and is supported by the affidavit and further affidavit sworn by the Applicant, Shem Oirere. The Applicant has impugned the judgment delivered herein on 14th September, 2017 and stated that the same contains some errors among them the failure to apportion liability between the 1st and 2nd Defendants. It is stated that the said judgment is not specifically against the Applicant who was the 2nd Defendant and was an employee of the 1st Defendant, The people Ltd. It is further deposed that the alleged defamatory publication concerned Fina Land Agencies and not the Plaintiff/Respondent.
3. The application is opposed. It is stated in the replying affidavit that there is a regular judgment on record. That the judgment was entered against the Defendants jointly and severally and the decree extracted and warrants of execution issued against the 2nd Defendant/Applicant. It is averred that the Applicant has not met the conditions for a grant of stay of execution and that the application should be dismissed.
4. The application was canvassed by way of written submissions which I have duly considered.
5. The judgment herein was delivered after the case was heard in full. Both the Plaintiff and the Defendants participated in the case and gave evidence. If any of the parties was dissatisfied with the judgment, they could have exercised their undoubted right of appeal or sought orders for the review of the judgment. There is no leeway for the setting aside of the judgment herein on the basis of the mistakes or errors alluded to in the application. Order 12 rule 7 and Order 40 rules 1 & 2 and Sections 1, 1A, 3 & 3A Civil Procedure Rules which the application is expressed to be brought under do not come to the Applicant’s rescue in the circumstances of this case.
6. It has been submitted by the Respondents counsel that the Applicant’s Advocates are not regularly on the record for failure to comply with Order 9 rule 9 Civil Procedure Rules. However, the court record reflects that on 22nd August, 2016 the Applicant’s advocates, Ms Omwoyo , Momanyi Gichuki & Co Advocates came on record with the leave of the court and therefore they are regularly on record.
7. With the foregoing, the application is dismissed with costs.
Dated, signed and delivered at Nairobi this 9th day of Nov., 2017
B.THURANIRA JADEN
JUDGE