[2003] KEHC 544 (KLR)
The court found that the applicant's failure to attend the hearing could have been due to his counsel's failure to inform him, which is a recognized ground for setting aside an ex parte judgment. The court also noted that the award against the applicant was substantial and included damages to a third party, raising...
Source-derived case information.
- Citation
- [2003] KEHC 544 (KLR)
- Parties
- Plaintiff: Boniface Kiragu Waweru; Defendant: James K. Mulinge; Defendant: Curios Factory (sued as a firm)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3060 of 1994
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application to set aside ex parte judgment granted.
- Legal Topics
- Setting Aside Ex Parte Judgment, Review of Judgment, Non Disclosure of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Kiragu Waweru
Plaintiff
James K. Mulinge
Defendant
Curios Factory (sued as a firm)
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment against the applicant should be set aside due to lack of notice of the hearing date.
- 2 Whether the applicant has a good defence to the claim for arrears of rent and damages.
- 3 Whether the court should exercise its discretion to reopen the matter in the interests of justice.
Ratio Decidendi
The court found that the applicant's failure to attend the hearing could have been due to his counsel's failure to inform him, which is a recognized ground for setting aside an ex parte judgment. The court also noted that the award against the applicant was substantial and included damages to a third party, raising questions about the applicant's liability. In the interests of justice and to allow the applicant an opportunity to present his defence, the court exercised its discretion to grant the application to set aside the ex parte judgment, subject to the applicant paying the costs of the application and throw away costs of the suit to the respondent.
Court Disposition
Application to set aside ex parte judgment granted.
Orders
- Prayer 2 of the application is granted as prayed.
- The applicant to pay the costs of the application and throw away costs of the suit to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 3060 OF 1994
BONIFACE KIRAGU WAWERU……………………………….PLAINTIFF
-VERSUSJAMES
K. MULINGE………………………………………….…1ST DEFENDANT
CURIOS FACTORY (sued as a firm)……………….2ND DEFENDANT
RULING
In this application filed on 26th March, 2003, the 2nd defendant, Peter M. Katu seeks orders setting aside this court’s judgement entered against him ex parte on 4th February, 2003 or to review it on the grounds that he was not aware of the hearing date and that vital evidence was not disclosed by the respondent/plaintiff which evidence he does not specify. The respondent however opposes the application strenuously.
The respondents suits against the applicant and one James K. Mulinge which came for hearing out judgment on 6th February, 2003 was as against the applicant for arrears of rent at shs.5,000/- per month until the date he left the premises. While so retaining www.kenyalawreports.or.kepossession he also sublet the premises to subtenants who resisted distress for rent leading to an award of substantial damages against the respondent. As a result of this unchallenged evidence a substantial award of Shs.1,016,500/- plus interest of such amount was made against the applicant.
The applicant now wants to have the judgement set aside as the failure to attend was caused by his advocate and that he has a good defence. The respondent contends to the contrary.
Looking at the issues herein, it is possible that the applicant could not attend due to his counsel’s failure to inform him. This is a common occurrence. It is also observed that the award is fairly high and includes damages awarded to a third party for ….. the applicant is being held responsible. If the matter is therefore reopened, the court will be able to determine whether or not the applicant was liable for damages paid to a third party. The court’s discretion will not have therefore been in vain if the matter is reopened. www.kenyalawreports.or.ke
In view of the above, I grant prayer 2 of the application as prayed. The applicant to pay the costs of the application and the throw away costs of the suit to the respondent. Orders accordingly.
Delivered this 8th day of April, 2003.
G.P. Mbito
JUDGE