[2003] KEHC 548 (KLR)
The court found that the case did not fall within the scope of Order IXB of the Civil Procedure Rules because the Defendants' advocates were present in court and sought an adjournment, which was refused, rather than failing to attend altogether. The court further held that the 2nd Defendant's dissatisfaction with...
Source-derived case information.
- Citation
- [2003] KEHC 548 (KLR)
- Parties
- Plaintiff: Edward Njoroge Maina; Defendant: John Koima; Defendant: Alfred Lagat t/a Ugwe Bus Service
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 28 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed with costs to the plaintiff
- Legal Topics
- Setting Aside Judgment, Non Attendance, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Njoroge Maina
Plaintiff
John Koima
Defendant
Alfred Lagat t/a Ugwe Bus Service
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the 2nd Defendant is entitled to have the judgment and consequential orders set aside under Order IXB Rule 8 of the Civil Procedure Rules.
- 2 Whether the non-attendance or conduct of the 2nd Defendant's advocates constitutes sufficient reason to set aside the judgment.
- 3 Whether the 2nd Defendant was properly named in the pleadings.
Ratio Decidendi
The court found that the case did not fall within the scope of Order IXB of the Civil Procedure Rules because the Defendants' advocates were present in court and sought an adjournment, which was refused, rather than failing to attend altogether. The court further held that the 2nd Defendant's dissatisfaction with the conduct of his advocates, who were appointed by his insurers, did not constitute sufficient reason to set aside the judgment. The court also rejected the argument regarding improper naming of the 2nd Defendant, noting that the defence had admitted his description in the plaint. Consequently, the application to set aside the judgment was dismissed with costs to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The 2nd Defendant's application dated May 23, 2003 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 28 OF 1998
EDWARD NJOROGE MAINA ……………………………………PLAINTIFF
VERSUS
JOHN KOIMA ……………..………………………………...1ST DEFENDANT
ALFRED LAGAT
T/A UGWE BUS SERVICE ...………………………………2ND DEFENDANT
RULING
This is an application under Order IXB Rule 8 of the Civil Procedure Rules. In it, the 2nd Defendant seeks, in pertinent part, to have the Judgment and/or decree herein and all consequential orders set aside. The 2nd Defendant’s case is that the suit was heard without his participation. The Court Record shows that on May 18, 1999 when the suit came up for hearing an Advocate who stated to be holding brief for the Defendants’ Advocates successfully sought the leave of the Court to have the case adjourned as the said Advocates wanted to withdraw from acting for the Defendants. The same reason was advanced on February 9, 2000 but was rejected by my Learned Brother the Honourable Mr. Justice Rimita who ordered that the case do proceed for hearing on that date as scheduled.
The case was duly heard and Judgment was delivered against the Defendants on March 17, 2000. The matter came for taxation on May 9, 2000 at which the Defendants were represented by an Advocate holding brief for Mr. Kembi Gitura who is from the same firm of Advocates which had sought to withdraw from acting for the Defendants. The said firm of Advocates appear to have been instructed to act in the matter by the 2nd Defendant’s insurers. The 2nd Defendant stated that those Advocates did not inform him of the hearing date in the case. He blamed them for having “casually and negligently handled (his) … case”.
Order IXB of the Civil Procedure Rules, as its heading rightly suggests, deals with hearings and consequence of non-attendance. All authorities on the point accept this. From what was stated by the 2nd Defendant in his affidavits dated May 23, 2003 and May 22, 2003, this was not a case of non-attendance but one in which the Defendants’ Advocates attended before the Court and sought the adjournment of the hearing which was refused. That alone brings the case out of the scope of Order IXB of the Civil Procedure Rules.
Although this Court sympathises with the 2nd Defendant for being let down by the Advocates appointed by his insurers to act for him, no sufficient reason has been demonstrated to prevent the Plaintiff from enjoying the fruits of his Judgment. That conclusion is sufficient to determine the application before me. However, in fairness to Counsel and for conclusiveness of record, I would like to state that I have carefully looked at the authorities relied on by the 2nd Defendant’s Counsel and the same are not relevant in view of the decision I have come to. There was also argument that the 2nd Defendant was not properly named in the pleadings but I think that that is an issue beyond the scope of the application under consideration. In any event, the Defence filed on behalf of that Defendant expressly admitted his description in the Plaint and he cannot now state otherwise.
I, therefore, dismiss the 2nd Defendant’s application dated May 23, 2003 with costs to the Plaintiff.
Dated and Delivered at Nakuru this 8th day of July, 2003.
ALNASHIR VISRAM
JUDGE