[2016] KEHC 3679 (KLR)
The court found that the Defendant's failure to file a defence was due to the mistake or negligence of its previous advocates, not the Defendant's own fault. The Respondent was served with the application and hearing notice but chose not to oppose the application. In the absence of opposition and given the interests...
Source-derived case information.
- Citation
- [2016] KEHC 3679 (KLR)
- Parties
- Plaintiff: Musee Mati; Defendant: Family Bank Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 21 of 2014
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Default Judgment
- Outcome
- application allowed; default judgment set aside
- Judges
- DO Ogembo
- Legal Topics
- Setting Aside Default Judgment, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musee Mati
Plaintiff
Family Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Default Judgment
Legal Issues
- 1 Whether the default judgment entered against the Defendant should be set aside due to failure by previous advocates to file a defence.
- 2 Whether the Defendant should be granted leave to file its defence out of time.
Ratio Decidendi
The court found that the Defendant's failure to file a defence was due to the mistake or negligence of its previous advocates, not the Defendant's own fault. The Respondent was served with the application and hearing notice but chose not to oppose the application. In the absence of opposition and given the interests of justice, the court exercised its discretion to set aside the default judgment to allow the Defendant to defend the suit. The court emphasized that the mistake of counsel should not be visited upon an innocent litigant and that the real issues in dispute should be determined on their merits.
Court Disposition
application allowed; default judgment set aside
Orders
- The default judgment entered against the Defendant on 7th July 2015 is set aside.
- All consequential orders arising from the default judgment are set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 21 OF 2014
MUSEE MATI …...…..…….....………..PLAINTIFF/ RESPONDENT
VERSUS
FAMILY BANK LIMITED ........................DEFENDANT/APPLICANT
RULING OF THE COURT
1. The Notice of Motion application before the court is dated 9th October 2015 filed by the Defendant. The Applicant seeks to secure the following prayers:-
a) “That the application herein be certified as urgent and service be dispensed with in the first instance.
b) That default judgment entered for the Plaintiff against Defendant herein on the 7th July 2014 be set aside pending inter-parties hearing and determination of this application.
c) That default judgment entered for the Plaintiff against Defendant herein on the 7th July 2014 be set aside pending inter-parties hearing and determination of this suit.
d) That this Honourable Court be pleased to issue an order staying the execution of the default judgment entered for Plaintiffs against the Defendants on the 7th July 2015.
e) That leave be granted to the Defendant/Applicant to file its defence out of time.
f) That if prayer (5) above is granted, the defence herein marked as Annexture ‘AO2’ to the Supporting Affidavit be deemed to have been filed and served upon the Plaintiff.
g) That cost of this application be in the cause.”
2. The application is premised on the grounds set out therein and is supported by affidavit of Anthony Ouma sworn on 9th October 2015.
3. The Applicant’s case is that the Plaintiff obtained judgment in default of defence on 7th July 2014 and unless the same is stayed the Plaintiff is likely to execute against the Defendant and further continues to enjoy a permanent injunction restraining the Defendant from realizing the security offered for a loan amount that remains owing. The previous advocates on record, Messrs J.W. Wambua & Company Advocates, entered appearance on the 19th of May 2014 but failed to file defence to the suit despite being instructed by the Defendant Bank to defend them in the suit herein. Due to that failure, refusal, negligence and/or neglect by the said Advocates to inform or update the Defendant on the developments of the suit, the Defendant Bank did not have the information on the proceedings and events in the file in particular the default judgment entered herein. The applicant states that delay in filing the defence was caused by the mistake or error of the said Advocate which mistake should not be visited upon the innocent client. The applicant’s case is that non of the parties herein will be prejudiced in any way whatsoever by the granting of the prayers herein, which are necessary in the interests of justice so that the real questions for determination between the parties are placed before the court for final and effectual determination thereof.
4. The application is not opposed. The Respondent was served both with the application and the hearing notice for 18th July 2016 but has not responded to the application. The hearing notice was received in the firm of Apollo Muinde & Ngunze Advocates on 6th July 2016. The Applicant filed an affidavit of service herein on 18th July 2016. Upon being satisfied that the application was served, and that a hearing notice was also duly served, I allowed the Applicant’s Counsel Mr. Akelo to proceed in the absence of the Respondent.
5. I have carefully considered the application. The Respondent is aware of this application but has chosen not to appear to oppose it. The presumption then is that the Respondent does not oppose the possible grant of the prayers. In that regard, the only issue this court raises for determination is whether or not the application appears merited.
6. The application speaks for itself. The Applicant has stated the reasons why it seeks to set aside the judgment. It means that the Applicant is not happy with the said judgment which was entered in default, and wants to have the same set aside to enable it defend the suit. That is a prayer which should be granted where there is no opposition to it.
7. In the upshot, the said application is allowed as prayed with the result that the default judgment entered against the Defendants on 7th July 2015 is hereby set aside as are all consequential orders arising there from.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 28TH DAY OF JULY, 2016.
……………………………………
E. OGOLA
JUDGE
Present
Mr. Akelo for Applicant
Court Assistant – Ms. Doreen