[2016] KEHC 5936 (KLR)

[2016] KEHC 5936 (KLR)

The court found that the defendant was afforded ample opportunity to be heard, including the chance to file submissions, which he did. The judgment expressly considered the evidence and pleadings on record. The defendant failed to demonstrate that the judge did not consider his submissions or that there was any error apparent on the face of the record. The court held that the mere allegation that submissions were not considered, without cogent evidence, is insufficient to set aside a regular judgment. The application was found to be an abuse of process, intended to delay execution, and lacking in merit. The proper remedy for the defendant, if aggrieved, was to appeal the judgment, not to...

Citation
[2016] KEHC 5936 (KLR)
Parties
Plaintiff: Grand Creek LLC; Plaintiff: John Kristler Coors; Defendant: Nathan Chesang Moson
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
23 March 2016
Case Number
Civil Case 214 of 2011
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment and Stay Execution
Outcome
application dismissed with costs to the plaintiffs
Judges
CM Kariuki
Legal Topics
Setting Aside Judgment, Stay of Execution, Right to Be Heard, Natural Justice, Abuse of Process
Source Language
English
Civil Procedure Commercial and Corporate Setting Aside Judgment Stay of Execution Right to Be Heard Natural Justice Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Grand Creek LLC

Plaintiff

John Kristler Coors

Plaintiff

Nathan Chesang Moson

Defendant

Procedural Posture

Civil Case / Ruling on Application to Set Aside Judgment and Stay Execution

Legal Issues

  1. 1 Whether the court should set aside or vary the judgment delivered on 25th January 2013 for alleged failure to consider the defendant's submissions.
  2. 2 Whether the application for stay of execution and setting aside judgment was properly before the court under the cited provisions.
  3. 3 Whether the defendant's right to be heard or rules of natural justice were breached.

Ratio Decidendi

The court found that the defendant was afforded ample opportunity to be heard, including the chance to file submissions, which he did. The judgment expressly considered the evidence and pleadings on record. The defendant failed to demonstrate that the judge did not consider his submissions or that there was any error apparent on the face of the record. The court held that the mere allegation that submissions were not considered, without cogent evidence, is insufficient to set aside a regular judgment. The application was found to be an abuse of process, intended to delay execution, and lacking in merit. The proper remedy for the defendant, if aggrieved, was to appeal the judgment, not to...

Court Disposition

application dismissed with costs to the plaintiffs

Orders

  • The defendant's application dated 25th February 2013 is dismissed.
  • The plaintiffs are awarded costs of the application.