[2012] KEHC 817 (KLR)

[2012] KEHC 817 (KLR)

The court found that the Defendant’s failure to enter appearance was due to an excusable mistake, namely, the filing of the Memorandum of Appearance in the wrong court. The court accepted that such mistakes are inevitable and should not, by themselves, deprive a party of the right to be heard. Furthermore, the draft defence raised triable issues regarding the performance of contractual obligations and the justification for revocation of the sale transaction. In the interests of justice and guided by the principles of judicial discretion, the court exercised its power to set aside the ex parte judgment, allowing the Defendant to defend the suit on its merits, subject to payment of the...

Citation
[2012] KEHC 817 (KLR)
Parties
Plaintiff: Jelimar Developers Limited; Defendant: Wilson Waithaka Gitau
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
21 November 2012
Case Number
Civil Suit 552 of 2010
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Outcome
Application allowed; ex parte judgment set aside.
Judges
CM Njagi, C.N Mutava
Legal Topics
Setting Aside Ex Parte Judgment, Default of Appearance, Judicial Discretion, Excusable Mistake
Source Language
English
Civil Procedure Setting Aside Ex Parte Judgment Default of Appearance Judicial Discretion Excusable Mistake

Case Brief

Summary, issues, holding and outcome

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Parties

Jelimar Developers Limited

Plaintiff

Wilson Waithaka Gitau

Defendant

Procedural Posture

Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment

Legal Issues

  1. 1 Whether the ex parte judgment entered against the Defendant should be set aside for failure to enter appearance and/or defence within the prescribed period.
  2. 2 Whether the Defendant's explanation for the failure to enter appearance constitutes an excusable mistake.
  3. 3 Whether the draft defence raises triable issues warranting the matter to proceed to hearing.

Ratio Decidendi

The court found that the Defendant’s failure to enter appearance was due to an excusable mistake, namely, the filing of the Memorandum of Appearance in the wrong court. The court accepted that such mistakes are inevitable and should not, by themselves, deprive a party of the right to be heard. Furthermore, the draft defence raised triable issues regarding the performance of contractual obligations and the justification for revocation of the sale transaction. In the interests of justice and guided by the principles of judicial discretion, the court exercised its power to set aside the ex parte judgment, allowing the Defendant to defend the suit on its merits, subject to payment of the...

Court Disposition

Application allowed; ex parte judgment set aside.

Orders

  • The ex parte judgment entered against the Defendant is set aside.
  • The Draft Defence and Counterclaim are deemed properly on court record upon payment of requisite court fees.