[2000] KEHC 298 (KLR)
The court found that the 1st Defendant provided a reasonable explanation for his failure to enter appearance and file a defence, namely that his advocates failed to act on his instructions despite being duly instructed and paid. The court held that the default was not willful on the part of the 1st Defendant but was...
Source-derived case information.
- Citation
- [2000] KEHC 298 (KLR)
- Parties
- Plaintiff: Andrew Mutisya Ramuti; Defendant: John Matiri Manze
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3362 of 1994
- Procedural Posture
- Civil Case / Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed
- Legal Topics
- Setting Aside Judgment, Default Judgment, Failure to Enter Appearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Mutisya Ramuti
Plaintiff
John Matiri Manze
Defendant
Procedural Posture
Civil Case / Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the 1st Defendant should be set aside due to failure to enter appearance and defence.
- 2 Whether the failure to enter appearance and defence was willful or excusable.
Ratio Decidendi
The court found that the 1st Defendant provided a reasonable explanation for his failure to enter appearance and file a defence, namely that his advocates failed to act on his instructions despite being duly instructed and paid. The court held that the default was not willful on the part of the 1st Defendant but was due to the omission of his advocates. In the interests of justice, the court exercised its discretion to set aside the interlocutory judgment and granted the 1st Defendant leave to file his defence. The draft defence annexed to the application was deemed properly filed and served upon payment of court fees.
Court Disposition
application allowed
Orders
- The interlocutory judgment entered against the 1st Defendant on 7/6/1997 is set aside.
- The 1st Defendant is granted leave to file his defence.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO.3362 OF 1994
ANDREW MUTISYA RAMUTI …………………..…………PLAINTIFF VERSUS JOHN MATIRI MANZE & 3 OTHERS ………………….. DEFENDANTR U L I N G The applicant 1st Defendant through this chamber summons seeks orders that the interlocutory judgment entered against him on 7th June, 1997 be set aside. He submits that failure to enter appearance and defence was not as a result of his willful conduct but due to the failure and/or omission of his advocate hitherto on record to carry out instructions to the later.
The application is opposed on the ground that the applicant had no explanation as to why he failed to enter appearance and enter defence.
But the applicant has produced evidence that he did on 30/3/1997 instruct the firm of M/S M. MAKUNDI & Co., Advocates to act for him and he discovered that firm had not carried out his instructions, he again on 7/7/1998 did instruct the firm of M/S P.M. MATATA & Co., Advocates to act for him. He has annexed receipts of payments.
This is reasonable explanation on the part of the applicant/1st Defendant for failure to enter appearance and file a defence. He was failed by his advocates.
It can’t be said that this application lacks in merit and therefore it ought to succeed.
The application is allowed and the Judgment entered against the 1st Defendant on 7/6/1997 is hereby set aside and the 1st defendant granted leave to file his defence.
The annexed draft defence herein deemed as properly filed and served on payment of the court fees.
Orders accordingly.
Dated and delivered at Nairobi this 4th day of July, 2000J.L.A. OSIEMO JUDGE