[2004] KEHC 1992 (KLR)
The court found that the confusion over hearing dates was caused by the plaintiff's advocate serving two different hearing notices, which misled the defendant's counsel into attending court on the wrong date. There was no evidence of deliberate non-attendance by the defendant. Since judgment on liability had already...
Source-derived case information.
- Citation
- [2004] KEHC 1992 (KLR)
- Parties
- Plaintiff: Basilio Chabali; Defendant: Sudi Kauli Mwatela; Defendant: M.A. Bayusuf & Sons Ltd
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 25 of 2001
- Procedural Posture
- Civil Suit / Application to Set Aside Judgment on Quantum of Damages
- Outcome
- Application allowed; proceedings and judgment on quantum of damages set aside.
- Legal Topics
- Setting Aside Judgment, Formal Proof, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Basilio Chabali
Plaintiff
Sudi Kauli Mwatela
Defendant
M.A. Bayusuf & Sons Ltd
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Judgment on Quantum of Damages
Legal Issues
- 1 Whether the proceedings and judgment on quantum of damages should be set aside due to confusion over hearing dates.
- 2 Whether the defendant should be granted unconditional leave to be heard on assessment of damages.
Ratio Decidendi
The court found that the confusion over hearing dates was caused by the plaintiff's advocate serving two different hearing notices, which misled the defendant's counsel into attending court on the wrong date. There was no evidence of deliberate non-attendance by the defendant. Since judgment on liability had already been entered, the defendant retained the right to be heard on the assessment of damages. Denying this right would be unjust in the absence of willful default. The court therefore exercised its discretion to set aside the proceedings and judgment on quantum of damages, allowing the defendant to participate in the assessment of damages.
Court Disposition
Application allowed; proceedings and judgment on quantum of damages set aside.
Orders
- Orders granted as prayed in the Chamber Summons dated 31/10/03.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT NO. 25 OF 2001
BASILIO CHABALI……………………………………………PLAINTIFF
V E R S U S
1. SUDI KAULI MWATELA……………………………1ST DEFENDANT 2. M.A. BAYUSUF & SONS LTD……………………..2ND DEFENDANT
R U L I N G
By application dated 31/10/03 the Defendant seeks to set aside proceedings and judgment entered into on quantum of damages on 15/10/03. The Defendant seeks unconditional leave to be heard in the defence. The reasons advanced are that there was confusion as to the hearing dates resulting in the failure of Defendant counsel to be present in court (in Malindi) when the case was called for formal proof.
I have considered the supporting affidavit and the reply thereof. It is quite clear that the advocate of the Plaintiff proceeded to serve two different hearing notices and thus confused the Defendants’ Advocate who attended court on the wrong date. There is no allegation that the non-attendance was deliberate. The parties had already entered judgment on liability. The Defendant was entitled to be heard as to the assessment of damages. That right cannot be taken away from a party except in most clear cases. I find therefore the Defendant has shown a good reason why he failed to appear in court when the suit proceeded. His failure cannot be visited on his client the Defendant and therefore I am inclined to allow the application.
Orders are granted as prayed in the Chamber Summons dated 31/10/03. Costs shall be in the cause.
Dated at Mombasa this 2nd day of March, 2004.
JOYCE KHAMINWA
J U D G E
Read in presence of:- Mr. Muthama – H/B Joyce Khaminwa, J.