[2000] KEHC 104 (KLR)
The court held that an application to set aside a default judgment must be supported by an explanation for the non-appearance and failure to file a defence. In this case, the applicant's affidavit did not provide any such explanation. As there was no basis upon which to exercise the court's discretion to set aside...
Source-derived case information.
- Citation
- [2000] KEHC 104 (KLR)
- Parties
- Applicant: Charles Mwalia T/A Holiday Enterprises; Respondent: Kenya Bureau Of Standards
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1058 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Default Judgment, Setting Aside Judgment, Non Appearance, Failure to File Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Mwalia T/A Holiday Enterprises
Applicant
Kenya Bureau Of Standards
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for non-appearance and failure to file a defence to justify setting aside the default judgment.
Ratio Decidendi
The court held that an application to set aside a default judgment must be supported by an explanation for the non-appearance and failure to file a defence. In this case, the applicant's affidavit did not provide any such explanation. As there was no basis upon which to exercise the court's discretion to set aside the judgment, the application was found to lack substance and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the default judgment is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
High Court of Kenya at Nairobi October 27, 2000
Milimani Commercial Courts
T Mbaluto, Judge
Civil Case No 1058 of 2000
Charles Mwalia T/A Holiday Enterprises
v
Kenya Bureau Of Standards
RULING
October 27, 2000 T Mbaluto, Judge delivered the following ruling. This is an application under Order IXA Rules 10 and 11, of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The application is supported by an affidavit sworn on October 2, 2000 by Michael J Iseme, an advocate of this Honourable Court and a partner in the firm of Iseme, Kamau & Maema Advocates, which said firm is on record for the applicant. The application is opposed by the respondent on the ground that no explanation has been put forward by the applicant to justify the grant of the orders sought. It is observed that the order sought is the setting aside of a default judgment entered herein.
In opposing the application, the respondent has deponed in his affidavit sworn on October 5, 2000 that the defendant has offered no explanation as to why it failed to make an appearance or to file a defence within the prescribed period. The same point was taken by the respondent’s advocate Mr Nzamba Kitonga.
An application under Order IXA 10 and 11 of the Civil Procedure Rules is brought where judgment has been entered for non-appearance and/or default of defence. Given that fact, it should be obvious that in such an application there has to be an explanation as to how and why non appearance and failure to file defence occurred. In the instant case, the affidavit sworn by Mr Iseme does not give any such explanation and consequently, there is no basis upon which the orders sought can be granted. The application therefore lacks substance and cannot possibly be granted.
For those reasons, the application is dismissed with costs.