[2000] KEHC 302 (KLR)
The court found that the defence filed by the defendant disclosed a reasonable defence to the plaintiff's claim. The authorities cited establish that the court has wide discretion to set aside ex parte judgments, even if regularly entered, provided the defendant demonstrates a meritorious defence. The overriding...
Source-derived case information.
- Citation
- [2000] KEHC 302 (KLR)
- Parties
- Plaintiff: B.N. Georgiadis; Defendant: Satish B. Shah & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3049 of 1992
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application allowed; ex parte judgment set aside on terms.
- Judges
- JL Osiemo
- Legal Topics
- Setting Aside Judgment, Ex Parte Judgment, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.N. Georgiadis
Plaintiff
Satish B. Shah & Another
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered against the defendant should be set aside.
- 2 Whether the defence filed discloses a reasonable defence on the merits.
Ratio Decidendi
The court found that the defence filed by the defendant disclosed a reasonable defence to the plaintiff's claim. The authorities cited establish that the court has wide discretion to set aside ex parte judgments, even if regularly entered, provided the defendant demonstrates a meritorious defence. The overriding concern is to do justice between the parties. Accordingly, the court exercised its discretion to set aside the ex parte judgment on terms, including deposit of the decretal amount and payment of costs thrown away.
Court Disposition
Application allowed; ex parte judgment set aside on terms.
Orders
- The ex parte judgment entered against the defendant on 23/7/1997 is set aside.
- The defendant shall deposit the whole of the decretal amount in court within 14 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.3049 OF 1992
B.N. GEORGIADIS ………………….……………….….PLAINTIFF
VERSUS
SATISH B. SHAH & ANOTHER……………….... . DEFENDANTS
R U L I N G
This application seeks orders to set aside the judgment, which was entered against the applicant/defendant on 23/7/1997. The applicant had filed a defence but failed to file a list of documents which led to the striking out of the defence and entering Judgment in favour of the Plaintiff. This is admitted by the defence dispite the fact that they were given humble time. But counsel for the defendant submits that there is a good defence to the suit and urges this court to grant the orders sought so that the suit proceeds to hearing on merit.
I have looked at the defence filed herein and I am satisfied that it contains reasonable defence to the Plaintiff’s claim.
There are ample authorities to the effect that, not-withstanding regularity of ex-parte judgment, a court may set it aside if a defendant shows that he has a reasonable defence on the merits KINGSWAY TYRES AND AUTOMART LTD VS. RAFIKI ENTERPRICES LTD (CIVIL APPEAL NO.220 OF 1995) (Unreported) TREE SHADE MOTORS LTD VS. D.T. DOBIE AND COMPANY (K) LTD CIVIL APPEAL NO.38 OF 1998. There are no limits or restrictions on the Judge’s discretion except that if he does vary the Judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.
This was stated by DUFFUS P in P.N PATEL V. E.A. CARGO HANDLING SERVICES LTD 1974 E.A. 75 at page 76 C and E For the above reasons the applicant’s application is allowed. The exparte Judgment entered herein against the defendant on 23/7/1997 is set aside on the following terms.
1. Deposit of the whole of the decretal amount to court. Within 14 days
2. The Plaintiff/Respondent is entitled to costs thrown away and payment to be made before the next hearing date.
These are the orders of this court.
Dated and Delivered at Nairobi this 9th day of February, 2000
J.L.A. OSIEMO
JUDGE