[2023] KEHC 25218 (KLR)

Chui Manufacturers Limited & another v Wariara (Civil Appeal 656 of 2006) [2023] KEHC 25218 (KLR) (Civ) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25218 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 656 of 2006

AN Ongeri, J

November 10, 2023

Between

Chui Manufacturers Limited

1st Appellant

Manukant Nemchand Shah

2nd Appellant

and

Judy Wariara

Respondent

(Being an appeal from the ruling of Hon. E. C. Cherono (SPM) in Milimani CMCC no. 9437 of 2005 delivered on 15/9/2006)

Judgment

1. The appellants are aggrieved by the ruling delivered on 15/9/2006 which dismissed the appellant’s application dated 16/8/2006 which was seeking to set aside the exparte judgement with consequential orders thereto.

2. The parties filed written submissions as follows; the appellants submitted that the application dated 16/8/2006 sought orders to set aside the exparte judgement,

3. Further that stay of execution of the decree dated 16/5/2006 be issued and the amount of Kshs 435,156 paid to Kirriyu Merchants be deposited in court and a declaration be issued that the payment of the sum Kshs. 352,216 be declared unlawful and further that the draft defence be deemed as duly filed and served.

4. The prayer seeking stay of execution is spent as the appellant already paid Kshs. 435,156.

5. In this instance the court entered exparte interlocutory judgement against the defendants on 16/5/2006 after the appellant failed to enter appearance and file defence.

6. On 15/9/2006 the trial court struck out the appellant’s chamber summons vide a ruling of even date and awarded costs to the respondent herein.

7. The appellant submitted that the exparte judgment as entered by the court on 16/5/2006 was irregular as the appellants demonstrated that the summons and court pleadings were never served a fact which the court chose to disregard.

8. The appellant further submitted that the trial court secluded a specific provision that the appellant relied on in exclusion of others. It failed to take cognizance of the fact that there were other provisions that the appellants relied on that had merit in moving the court.

9. The appellants submitted that the trial court failed to consider the appellants affidavit evidence as sworn on 16/8/2006 on the facts that surrounding the filing of the application and failed to consider the same on its merit. The issue of setting aside of the exparte orders were never considered at all and therefore the appellant was never heard.

10. The respondent in opposition submitted that at the time the application was filed in court on 17/8/2006 the appellant had already settled the decretal amount in full and the auctioneer’s charges.

11. This prompted the respondent to file a preliminary objection dated 23/8/2006 and this is what disposed of in the application dated 17/8/2006.

12. The application was dismissed for reasons that there was nothing to be stayed and therefore the application had been overtaken by events.

13. The application to set aside the exparte judgment was additionally found to be superfluous as the proceedings has already been concluded with payment of the full decretal amount and there was no other pending issued in the matter.

14. The sole issue for determination is whether the exparte judgment should be set aside.

15. I find that the court is clothed with the discretion to set aside exparte judgments. The said discretion has to be exercised judicially upon certain terms.

16. In the case of Sebel District Administration v Gasyali {1968} EA 300, 301 – 302, the court stated that the manner the discretion vested in the court would be exercised would be guided by the following factors;“The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered, and finally, I think it should always be remembered that to deny the subject a hearing should be the last resort of a court.”

17. In the current case, I find that the judgment has already been executed as the full decretal amount has been paid.

18. I find that the appeal has been overtaken. I dismiss it with no orders as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent