[2001] KEHC 159 (KLR)
The court found that the defendants, having been served with summons and the plaint, acted diligently by forwarding the documents to their insurer, whom they reasonably expected to enter appearance and file a defence on their behalf. The insurer's subsequent failure, due to being placed under receivership, was not...
Source-derived case information.
- Citation
- [2001] KEHC 159 (KLR)
- Parties
- Plaintiff: Ephantus Wanjohi; Plaintiff: Simonn Wang'ombe; Defendant: Stephen Macharia; Defendant: Samuel Njoroge; Defendant: Monica Njeri; Defendant: David Kimama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 332 of 1999
- Procedural Posture
- Civil Case / Application to Set Aside Interlocutory Judgment
- Outcome
- Application allowed; interlocutory judgment set aside.
- Judges
- ARM Visram
- Legal Topics
- Setting Aside Judgment, Default of Appearance, Representative Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Wanjohi
Plaintiff
Simonn Wang'ombe
Plaintiff
Stephen Macharia
Defendant
Samuel Njoroge
Defendant
Monica Njeri
Defendant
David Kimama
Defendant
Procedural Posture
Civil Case / Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered in default of appearance should be set aside.
- 2 Whether the defendants acted diligently and in good faith in relying on their insurer to enter appearance and file defence.
- 3 Whether the interests of justice require that the defendants be allowed to defend the action.
Ratio Decidendi
The court found that the defendants, having been served with summons and the plaint, acted diligently by forwarding the documents to their insurer, whom they reasonably expected to enter appearance and file a defence on their behalf. The insurer's subsequent failure, due to being placed under receivership, was not attributable to any fault or lack of diligence on the part of the defendants. The court held that it would be unjust to deny the defendants an opportunity to defend the suit, especially as they had a proposed defence raising substantive issues. The application to set aside the interlocutory judgment was therefore allowed, subject to the defendants paying the plaintiffs' thrown...
Court Disposition
Application allowed; interlocutory judgment set aside.
Orders
- The interlocutory judgment entered against the defendants is set aside.
- The defendants are granted leave to defend the action.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 332 OF 1999
EPHANTUS WANJOHI …………………………………1ST PLAINTIFF
SIMONN WANG’OMBE………………………………. 2ND PLAINTIFF
V E R S U S
STEPHEN MACHARIA……………………………….1ST DEFENDANT
SAMUEL NJOROGE ………………………………....2ND DEFENDANT
MONICA NJERI……………………………………….3RD DEFENDANT
DAVID KIMAMA………………………………… …..4TH DEFENDANT
R U L I N G
This is an application to set aside an interlocutory judgment entered against the Defendants in default of appearance.
The Defendants do not deny having been served with summons to enter appearance and the Plaint in this matter. They, however, state that upon receipt of the Summons and the Plaint, they forwarded both documents to the insurers of the motor vehicle for which this action relates. They expected the insurer to enter appearance and file defence on their behalf. That insurer is now under receivership. They are sued in their representative capacities as the administrators of the estate of the real owner of the motor vehicle who is now deceased. The Defendants in their proposed defence aver that the accident and damage was caused, or substantially contributed to, by the negligence of he 2nd Defendant.
I have considered the matters in this case and I am of the view that it is in the interests of justice that the Defendants should be allowed to defend the action against them. They trusted that the insurer would take action to safeguard their interests but that did not happen.
They have acted diligently in this matter and they cannot be said to be motivated only by a desire to obstruct or delay the cause of justice. The Defendants shall pay the Plaintiff’s thrown away costs.
I, therefore, allow this application in terms of the orders above.
DATED and DELIVERED at NAIROBI this 19th day of September, 2001.
ALNASHIR VISRAM
JUDGE