[2021] KEHC 9225 (KLR)
The court found that although the applicant failed to file a defence, the default was explained as being due to counsel's departure from the firm without proper handover. The court emphasized the importance of giving parties an opportunity to be heard where circumstances allow, in the interests of justice. The...
Source-derived case information.
- Citation
- [2021] KEHC 9225 (KLR)
- Parties
- Appellant: Harun Nganga Kibirie; Respondent: Zerah Anyango Oniala t/a Ogwell General Suppliers; Respondent: Christopher Omusala; Respondent: Jason Maroko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 707 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment, Fair Hearing, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Nganga Kibirie
Appellant
Zerah Anyango Oniala t/a Ogwell General Suppliers
Respondent
Christopher Omusala
Respondent
Jason Maroko
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the ex parte judgment pending appeal.
- 2 Whether the applicant has demonstrated sufficient cause for the grant of stay of execution.
- 3 Whether the interests of justice require the applicant to be given an opportunity to be heard.
Ratio Decidendi
The court found that although the applicant failed to file a defence, the default was explained as being due to counsel's departure from the firm without proper handover. The court emphasized the importance of giving parties an opportunity to be heard where circumstances allow, in the interests of justice. The applicant demonstrated willingness to comply with reasonable conditions and raised concerns about the ability to recover funds if the appeal succeeded. The court was persuaded that there was an arguable appeal and that a stay of execution was warranted to prevent prejudice to the applicant. Accordingly, the court granted a stay of execution of the ex parte judgment and the...
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the ex parte judgment entered against the appellant on 20th December, 2018 is granted.
- Stay of the ruling of the court made on 15th November, 2019 is granted.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 707 OF 2019
HARUN NGANGA KIBIRIE................................................................................APPELLANT
VERSUS
ZERAH ANYANGO ONIALA t/a Ogwell General Suppliers.................1ST RESPONDENT
CHRISTOPHER OMUSALA.....................................................................2ND RESPONDENT
JASON MAROKO.......................................................................................3RD RESPONDENT
RULING
This is an application by way of Notice of Motion dated 8th May, 2020 seeking a stay of execution of the ex-parte judgment entered on 20th December, 2018 and the ruling delivered on 8th November, 2019 (which should read 15th November, 2019). It is brought under Order 22 role 22, Order 42 rules 4 and 6, Order 51 rules 1 and 3 of the Civil Procedure Rules, Sections and 3A of the Civil Procedure Act.
The respondents had sued the appellant in the lower court and served summons to enter appearance and file a defence. However, the appellant only entered appearance but failed to file a defence.
The respondents then applied for judgment to be entered against the appellant which was done on 20th December, 2018. An application was then lodged to set aside the said ex parte judgment which however was dismissed in a ruling dated 15th November, 2019.
Following that dismissal, the appellant filed a Memorandum of Appeal dated 2nd December, 2019 raising several grounds therein. The present application is opposed and there is a replying affidavit sworn by the 1st respondent. Counsel agreed that this application be addressed by way of affidavit evidence.
The applicant has admitted the default of failing to file a defence which was attributed to the fact that counsel who was handling the matter left the firm without handing over. The step taken to file an appearance is in itself a demonstration that the applicant intended to be heard in the dispute lodged in court.
There is also a requirement that anyone approaching the court should be given a fair hearing if the facts and circumstances of the case allow.
There is no dispute that a judgment entered for failure to file a defence, like in the present case is a valid judgment. However, it is important to consider that the ends of justice require a party who desires to be heard, to have such an opportunity.
In paragraph 18 of the supporting affidavit the applicant is prepared to abide by any reasonable conditions that may be imposed by the court. There is also the contention that the source of income of the 1st respondent is not known and that if the appeal succeeds after the decree is settled, the applicant may not recover the money.
I have considered the material presented before the court and as stated in the respective affidavits. I am persuaded that there is an arguable appeal and that the applicant should be granted the orders sought.
There shall therefore be a stay of execution of the ex parte judgment entered against the appellant on 20th December, 2018. That being the case, the ruling of the court made on 15th November, 2019 is also stayed.
However, the applicant shall pay the respondents all the costs occasioned by this application from the date the entry of the ex parte judgment was made.
Dated, signed and delivered at Nairobi this 11th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE