[1995] KEHC 93 (KLR)
The court found that the Defendant's excuse for failing to enter appearance—that he was misled by the Plaintiff's Advocate—was unconvincing and, even if true, would entitle him to a remedy against the Advocate, not the Plaintiff. The court further determined that the Defendant did not have an arguable defence on the...
Source-derived case information.
- Citation
- [1995] KEHC 93 (KLR)
- Parties
- Plaintiff: Kenindia Assurance Company Ltd; Defendant: Bhai O M Al-Amin
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 235 of 1995
- Procedural Posture
- Civil Suit / Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed
- Legal Topics
- Setting Aside Ex Parte Judgment, Default of Appearance, Judicial Discretion, Defence on Merits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenindia Assurance Company Ltd
Plaintiff
Bhai O M Al-Amin
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered against the Defendant should be set aside.
- 2 Whether the Defendant's explanation for failing to enter appearance constitutes excusable mistake or inadvertence.
- 3 Whether the Defendant has an arguable defence on the merits.
Ratio Decidendi
The court found that the Defendant's excuse for failing to enter appearance—that he was misled by the Plaintiff's Advocate—was unconvincing and, even if true, would entitle him to a remedy against the Advocate, not the Plaintiff. The court further determined that the Defendant did not have an arguable defence on the merits, as any alleged set-off was against the Advocate and not the Plaintiff. The application was viewed as an attempt to delay justice rather than to correct an excusable mistake or present a genuine defence. Accordingly, the court exercised its discretion to refuse the application to set aside the ex parte judgment.
Court Disposition
application dismissed
Orders
- The application to set aside the ex parte judgment is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO 235 OF 1995
KENINDIA ASSURANCE COMPANY LTD ……PLAINTIFF
VERSUS
BHAI O M AL-AMIN………………..…………..DEFENDANT
RULING
The Defendant seeks to set aside an ex-parte judgement entered against him in default of appearance. He does not deny that he was served with summons to enter appearance but failed to do so. His excuse for the default is that the Plaintiff’s Advocate also happened to be his own advocate and that he was made to believe by the said Advocate that no action would be taken against him and that he should find ways of settling the matter. He also says he has a good defence and a sound set-off against the said Advocate. This application is opposed by the Plaintiff. The Advocate who is alleged to have misled the Defendant has deponed that there was no communication between him and the Defendant until after the Defendant’s goods where attached in execution of the ex parte decree. The said Advocate has also deponed at length that the Defendant has no arguable defence on the merits.
This court has an unfettered discretion to set aside an ex parte judgement. The discretion must however be exercised judicially in the best interests of even handed justice. The discretion exists in order that justice may not be sacrificed as a result of inadvertence or accidental slip or excusable mistake particularly where the Applicant has an arguable defence on the merits. The discretion is not to be exercised to assist a party who seeks to delay or obstruct the course justice.
Applying those principles to the facts here, I say that although I am unable to decide on the basis contradictory affidavit evidence whether the Defendant was misled by the Plaintiff’s Advocate as alleged, I am of the view that such excuse is a poor one and if true entitles the Defendant to a remedy against the said Advocate. And as regards the possible defence on the merits, suffice it to say that on the material before me I find the proposition that Defendant has a good defence untenable. Even his alleged set off is not against the Plaintiff but against the Plaintiff’s Advocate. On the whole, I am of the view that this application merely seeks to delay the course of justice. I dismiss it with costs to the Plaintiff.
Dated and delivered at Mombasa this November 28, 1995
A.G RINGERA
JUDGE