[2007] KEHC 3221 (KLR)

[2007] KEHC 3221 (KLR)

The court held that after the ex parte judgment was set aside, there was no longer a judgment sum that could be executed. Therefore, the condition requiring the defendant to deposit KES 1,000,000 in an interest earning account as a prerequisite for setting aside the judgment was not tenable. The only justifiable condition in the circumstances would have been an award of costs. The court therefore allowed the defendant's application to set aside the deposit condition and awarded costs of the Notice of Motion dated 6th May 2004 to the plaintiff, while costs of the Chamber Summons dated 13th December 2005 were to be costs in the suit.

Citation
[2007] KEHC 3221 (KLR)
Parties
Plaintiff: Grace E. Wambwa; Defendant: Continental Development
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
23 February 2007
Case Number
Civil Case 1872 of 1994
Procedural Posture
Civil Case / Ruling on Application to Vary Conditions for Setting Aside Ex Parte Judgment
Outcome
Defendant's application to set aside the deposit condition allowed; costs awarded as specified.
Legal Topics
Setting Aside Ex Parte Judgment, Specific Performance, Damages Assessment, Deposit of Judgment Sum
Source Language
English
Civil Procedure Land and Property Setting Aside Ex Parte Judgment Specific Performance Damages Assessment Deposit of Judgment Sum

Case Brief

Summary, issues, holding and outcome

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Parties

Grace E. Wambwa

Plaintiff

Continental Development

Defendant

Procedural Posture

Civil Case / Ruling on Application to Vary Conditions for Setting Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether the condition requiring the defendant to deposit KES 1,000,000 in an interest earning account as a prerequisite for setting aside the ex parte judgment was proper after the judgment had been set aside.
  2. 2 Whether the plaintiff could execute the judgment sum after the ex parte judgment was set aside.

Ratio Decidendi

The court held that after the ex parte judgment was set aside, there was no longer a judgment sum that could be executed. Therefore, the condition requiring the defendant to deposit KES 1,000,000 in an interest earning account as a prerequisite for setting aside the judgment was not tenable. The only justifiable condition in the circumstances would have been an award of costs. The court therefore allowed the defendant's application to set aside the deposit condition and awarded costs of the Notice of Motion dated 6th May 2004 to the plaintiff, while costs of the Chamber Summons dated 13th December 2005 were to be costs in the suit.

Court Disposition

Defendant's application to set aside the deposit condition allowed; costs awarded as specified.

Orders

  • Prayer 4 of the Chamber Summons dated 13th December 2005 is allowed, setting aside the condition requiring deposit of KES 1,000,000.
  • Costs of the Notice of Motion dated 6th May 2004 awarded to the plaintiff.