[2009] KEHC 1673 (KLR)

Source-derived case information.

Citation: [2009] KEHC 1673 (KLR)
Parties: Plaintiff: Col. Josiah Landy Mrashui; Plaintiff: Samuel Kalema Mrashui (Suing as a legal Representative of the Estate of Laban Mrashui); Defendant: Johnson Mwandawiro; Defendant: Clement Mulemwa Rughendo; Defendant: Mariam Wanjala Mwanyeza; Defendant: Godfrey Kizaka; Defendant: John Mwawansa; Defendant: Mwamburi Mwakangalu; Defendant: Danson Mwasenga
Court: High Court
Court Station: High Court at Mombasa
Jurisdiction: Kenya
Case Number: Civil Suit 325 of 2008
Procedural Posture: Civil Suit / Ruling on Interlocutory Judgment and Adjournment of Formal Proof
Outcome: Matter stood over generally; no order as to costs.
Legal Topics: Interlocutory Judgment, Default of Defence, Right of Audience, Service of Hearing Notice
Source Language: en

Civil Procedure Interlocutory Judgment Default of Defence Right of Audience Service of Hearing Notice

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Parties

Col. Josiah Landy Mrashui

Plaintiff

Samuel Kalema Mrashui (Suing as a legal Representative of the Estate of Laban Mrashui)

Plaintiff

Johnson Mwandawiro

Defendant

Clement Mulemwa Rughendo

Defendant

Mariam Wanjala Mwanyeza

Defendant

Godfrey Kizaka

Defendant

John Mwawansa

Defendant

Mwamburi Mwakangalu

Defendant

Danson Mwasenga

Defendant

Procedural Posture

Civil Suit / Ruling on Interlocutory Judgment and Adjournment of Formal Proof

Legal Issues

1 Whether interlocutory judgment was validly entered in light of appearance having been filed by the defendants.
2 Whether the defendants were entitled to notice of the formal proof hearing.
3 Whether the memo of appearance could be struck out by the court on its own motion.

Ratio Decidendi

The court found that interlocutory judgment was irregularly entered because the defendants had already filed a memorandum of appearance. The law provides that, upon entry of appearance, even if no defence is filed, the defendants retain the right to participate in formal proof, including cross-examination. The plaintiffs failed in their duty to serve the defendants with hearing notice for the formal proof. The court further held that the memorandum of appearance cannot be struck out on the court's own motion and that the interlocutory judgment, having been entered on the mistaken basis of non-appearance, is invalid and open to challenge. Consequently, the matter was stood over generally...

Court Disposition

Matter stood over generally; no order as to costs.

Orders

The matter is stood over generally.
There shall be no order as to costs.

Full Case Text

Judgment text and source record

22 paragraphs

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 325 of 2008

COL. JOSIAH LANDY MRASHUI

SAMUEL KALEMA MRASHUI (Suing as a legal

Representative of the Estate of LABAN MRASHUI)...............................PLAINTIFFS

VERSUS

JOHNSON MWANDAWIRO

CLEMENT MULEMWA RUGHENDO

MARIAM WANJALA MWANYEZA

GODFREY KIZAKA

JOHN MWAWANSA

MWAMBURI MWAKANGALU

DANSON MWASENGA .......................................................DEFENDANTS

R U L I N G

The suit was filed on 13. 11. 08. The firm of Opulu & Co. Advocates entered appearance on 19. 12. 08 but no defence filed. It is not clear whether the memo was served. There was a request for interlocutory judgment to be entered on 23. 01. 09 for failure to file defence. Interlocutory Judgment entered on 30. 3.09. This suggests that the plaintiffs were aware that appearance had been entered irrespective of whether they were served with the memo of appearance or not. It is trite law that once a party enters appearance then there is default in filing defence, that Defendant would still have a right of audience at any formal proof to cross-examine the plaintiff and his witnesses. This is a right that cannot be taken away.

The memo of appearance is on record and cannot be struck out suo motu. It can only be struck out if the court is appropriately moved.

I do hold that it was the duty of the plaintiff to have served the defendant with the hearing notice for today’s formal proof. Even if they did not know, now they do and this court must adjourn the matter. The Defendants would be entitled to costs.

However, upon perusal of the interlocutory judgment dated 30. 3.09 I noted that it was entered on basis of failure to enter appearance. Appearance had been entered on 19. 12. 08. It follows that the said interlocutory judgment appears to be irregular and invalid and can be challenged.

I therefore do hereby stand over the matter generally. There shall be no order as to costs.

Dated and delivered at Mombasa this 29th day of September 2009.

M. K. IBRAHIM

J U D G E

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