[2009] KEHC 3297 (KLR)
The court found that the trial magistrate erred in dismissing the appellants' applications to set aside the ex-parte judgments. The evidence showed that the plaintiffs had negotiated settlements with the appellants, signed discharge vouchers, and instructed their advocates to withdraw the suits. The appellants'...
Source-derived case information.
- Citation
- [2009] KEHC 3297 (KLR)
- Parties
- Appellant: John Meisi Ole Shira; Appellant: Offbeat Safris Ltd; Respondent: Patrick Kandaru Natoloi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 173 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Setting Aside Ex Parte Judgment, Application to Set Aside, Irregular Service, Settlement and Discharge, Draft Defence, Costs of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Meisi Ole Shira
Appellant
Offbeat Safris Ltd
Appellant
Patrick Kandaru Natoloi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the appellants' applications to set aside ex-parte judgments.
- 2 Whether the existence of settlement and discharge vouchers warranted setting aside the ex-parte judgments.
- 3 Whether the appellants' draft defence raised triable issues.
Ratio Decidendi
The court found that the trial magistrate erred in dismissing the appellants' applications to set aside the ex-parte judgments. The evidence showed that the plaintiffs had negotiated settlements with the appellants, signed discharge vouchers, and instructed their advocates to withdraw the suits. The appellants' advocate sought confirmation of settlement, but the respondents' advocates did not respond and instead proceeded with the hearing. This conduct was irregular and unprofessional. Furthermore, the appellants' draft defence raised triable issues. These factors constituted sufficient grounds to set aside the ex-parte judgments. The appeal was allowed, the magistrate's order was set...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The order of the Senior Resident Magistrate dated 29th October 2003 dismissing the appellants' applications is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 173 of 2003
JOHN MEISI OLE SHIRA……………...1ST APPELLANT
OFFBEAT SAFRIS LTD…………….....2ND APPELLANT
VERSUS
PATRICK KANDARU NATOLOI…….….RESPONDENT
JUDGMENT
This is an appeal from the ruling of the Molo Senior Resident Magistrate Mr. R. Kirui delivered in Molo SRMCC Nos. 68, 69, 70, 71, 72 and 74 of 2003 on 29th October 2003 in which he dismissed with costs the appellant’s application to set aside the ex-parte judgments in those cases. Though served neither the respondent nor his advocates appeared before me to oppose this appeal.
Having considered the matter I agree with Mr. Kagucia, counsel for the appellant, that the learned trial magistrate erred in dismissing the appellant’s applications. It is clear from the exhibit annexed to the affidavit in support of those applications that soon after those suits were filed and the appellant was served, the plaintiffs in those suits negotiated a settlement with the appellant. Those plaintiffs signed discharge vouchers and letters addressed to their advocates to withdraw the suits. Copies of those discharge vouchers and the letters were forwarded to their advocate by the appellant. The appellants also wrote to their advocate, Mr. F. Gross who in turn wrote to the plaintiff’s advocate asking him to confirm that those cases had been marked as settled. There is nothing on the record to show that the respondents’ advocates responded to that letter instead they proceeded with the hearing of the cases.
That was certainly irregular and unprofessional on the part of the respondents’ advocates. If the respondents thought the amount paid to them was for medical expenses as they claimed and they had been duped to sign discharge vouchers, the advocates should have said so, so that the appellants would have known what to do.
Besides this alone being a good enough reason to set aside the ex-parte judgments, the learned trial magistrate should also have noted that the appellants’ draft defence raised trial issues.
For these reasons I allow this appeal, set aside the learned Senior Resident Magistrate’s order of 29th October 2003 dismissing the appellants’ applications dated 27th August 2003 and substitute therefor an order allowing those applications with no order as to costs. The respondents having not opposed this appeal I order that each party bears his own costs of this appeal.
DATED and delivered on this 25th day of June, 2009.
D. K. MARAGA
JUDGE.