[2002] KEHC 309 (KLR)
The court found that the applicant had been honest in admitting service of the hearing notice and had provided a credible explanation for the failure to attend, namely a mix-up in the advocate's office. The court was satisfied that the applicant's conduct did not amount to a deliberate attempt to obstruct or delay...
Source-derived case information.
- Citation
- [2002] KEHC 309 (KLR)
- Parties
- Applicant: G K M; Respondent: R A M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 24 of 1999
- Procedural Posture
- Divorce Cause / Ruling on Chamber Summons to Set Aside Ex Parte Order
- Outcome
- Application granted; ex parte order set aside; applicant to pay costs.
- Legal Topics
- Divorce Proceedings, Setting Aside Ex Parte Orders, Discretion of Court, Service of Process
- 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
G K M
Applicant
R A M
Respondent
Procedural Posture
Divorce Cause / Ruling on Chamber Summons to Set Aside Ex Parte Order
Legal Issues
- 1 Whether the applicant has satisfied the conditions for setting aside an ex parte order or judgment.
- 2 Whether the applicant's failure to attend court was due to excusable mistake or inadvertence.
- 3 Whether justice and avoidance of hardship require the court to exercise its discretion in favour of the applicant.
Ratio Decidendi
The court found that the applicant had been honest in admitting service of the hearing notice and had provided a credible explanation for the failure to attend, namely a mix-up in the advocate's office. The court was satisfied that the applicant's conduct did not amount to a deliberate attempt to obstruct or delay justice. Applying the principles set out in Shah v Mbogo & Another, the court exercised its discretion to set aside the ex parte order to avoid injustice or hardship. The court also considered the interests of justice and the need for inter partes hearings where justified by the circumstances. However, the applicant was ordered to pay the costs of the application to the respondent.
Court Disposition
Application granted; ex parte order set aside; applicant to pay costs.
Orders
- Chamber Summons dated 27th September 2002 is granted in terms of prayers number 3 and 4.
- Applicant to pay costs of the application to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI DIVORCE CAUSE NO 24 OF 1999
G K M ……………………. PETITIONER
VERSUS
R A M ……………………….. RESPONDENT
R U L I N G
From what has been brought to my attention during the hearing of this Chamber Summons dated 27th September 2002 and filed by the petitioner G K M the same be and is hereby granted in terms of prayers number 3 and number 4 for the following reasons:
Firstly when considering the issue of justice and hardship the position of all the parties in the suit must be considered.
Secondly, honesty counts greatly in an application to set aside an exparte court order or judgment and in this application I am impressed by honesty on the part of the Applicant in that although things were mixed up in the office of the Applicant’s advocate, they have come out to clearly admit to the court that service of the hearing notice was effected and that has been followed by their explanation why they failed to appear.
Accordingly, and this is the third reason, I am satisfied that the Applicant has brought himself within the application of the law as set out in paragraph 2 (a) sub paragraph (iv), in the case of Shah v Mbogo & Another, Civil Case No. 1087/65 High Court Nairobi in that the court ought to exercise its discretion in favour of the Applicant in order to avoid injustice or hardship resulting from inadvertence or excusable mistake or error the Applicant not having deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.
Fourthly, it is in the interest of justice that the orders such as those granted on 4th July 2002 are granted following an Interpartes hearing where circumstances Justify as in this case.
To conclude, the Applicant, though successful in this application, will pay costs of this application to the Respondent R A M.
Dated this 14th Day of November 2002.
J.M. KHAMONI
JUSTICE