[2006] KEHC 3197 (KLR)
The court found that the defendant filed its memorandum of appearance and defence within the prescribed time but at the wrong registry due to being misled by the case title in the plaint and summons. This was deemed an excusable error. The court exercised its discretion to set aside the interlocutory and final...
Source-derived case information.
- Citation
- [2006] KEHC 3197 (KLR)
- Parties
- Plaintiff: LAS Express Cargo Ltd; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1147 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and for Extension of Time to File Defence
- Outcome
- application allowed; ex parte and final judgments set aside; defence deemed duly filed; costs to plaintiff
- Judges
- DW Mbuteti
- Legal Topics
- Setting Aside Judgment, Extension of Time, Filing at Wrong Registry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
LAS Express Cargo Ltd
Plaintiff
Kenya Ports Authority
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment and for Extension of Time to File Defence
Legal Issues
- 1 Whether the ex parte judgment entered against the defendant should be set aside due to filing of defence at the wrong registry.
- 2 Whether the defendant should be granted extension or enlargement of time to file its defence properly.
- 3 Whether the memorandum of appearance and defence filed at the Central Registry should be deemed properly filed.
Ratio Decidendi
The court found that the defendant filed its memorandum of appearance and defence within the prescribed time but at the wrong registry due to being misled by the case title in the plaint and summons. This was deemed an excusable error. The court exercised its discretion to set aside the interlocutory and final judgments to allow the defendant to defend the suit, noting that the defence raised triable issues, including locus standi and limitation. The court held that the plaintiff would not suffer any irreparable injustice, as any inconvenience could be compensated by an award of costs. The overriding objective of justice required that the matter be heard on its merits.
Court Disposition
application allowed; ex parte and final judgments set aside; defence deemed duly filed; costs to plaintiff
Orders
- The interlocutory judgment entered on 30th April 2004 and the final judgment entered on 20th May 2005 are set aside.
- The defendant's memorandum of appearance dated 4th November 2002 and defence dated 7th November 2003 filed at the Central Registry are deemed to have been duly filed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 1147 of 2002
LAS EXPRESS CARGO LTD………....................................................….PLAINTIFF/RESPONDENT
VERSUS
KENYAPORTS AUTHORITY…….......................................................…..DEFENDANT/APPLICANT
R U L I N G
Delay in the preparation and delivery of this ruling has been occasioned by my recent illness, hospitalization and recuperation. The delay is regretted.
This application by chamber summons dated 4th July 2004 is by the Defendant seeking the main orders that the ex parte judgement entered against it be set aside, that the court do grant extension or enlargement of time for the Defendant to file its defence properly, or, in the alternative, that the memorandum of appearance dated 4th November 2002 and defence dated 7th November 2002, both of which were filed at the Central Registry of this Court, be deemed to be properly filed. The application is stated to be brought under Order 9A, rules 10 and 11 and also Order 21 rule 22 (1) of the Civil Procedure Rules. Sections 3, 3A and 95 of the Civil Procedure Act and all other enabling provisions of the law are also invoked. The main grounds for the application are that the Defendant was misled by the title of the case appearing in the plaint and summons to enter appearance into filing its memorandum of appearance and defence at the Central Registry of this Court rather than at this division; that at any rate the memorandum of appearance and defence were filed within time; and that it is fair and just that the suit be heard inter partes so as to serve the ends of justice. There is an affidavit sworn by the Defendant’s advocate, MOHAMMED ALAWI, in support of the application. The Plaintiff has opposed the application as set out in the replying affidavit sworn on 7th July 2005 by one JAMA ALI JAMA, the Managing Director of the Plaintiff, and filed on 12 July 2005.
I have read both the supporting and replying affidavits. I have also given due consideration to the submissions of the learned counsels appearing. The history of this matter was set out in some detail in the final judgement delivered on 20th May 2005. I need not repeat it. The discretion of the court under rule 10 of Order 9A and also under rule 8 of Order 9B is intended to do justice to the parties. In this case it is clear that the Defendant filed its memorandum of appearance and defence within time but at the wrong registry - that is, at the Central Registry instead of the registry of this division. It was an excusable error, in that the Defendant’s counsel was misled into believing that the case was at the Central Registry because the plaint and the summons to enter appearance stated merely that the case was at the High Court of Kenya at Nairobi. The Defendant’s learned counsel fell into the same error when the suit came up for formal proof on 24th February 2005. In these circumstances it will be in the interests of justice that the interlocutory judgement entered on 30th April 2004 and the final judgement entered on 20th May 2005 be set aside to enable the Defendant to defend the suit. Its defence raises triable issues in addition to the preliminary issues whether or not the Plaintiff has the locus to bring the suit and whether or not the suit is statute-barred. The Plaintiff will not suffer any injustice that cannot be made good by an appropriate award of costs.
For the above reasons I will allow the application by chamber summons dated 4th July 2004. The interlocutory judgement entered on 30th April 2004 and the final judgement entered on 20th May 2005 be and are hereby set aside. The Defendant’s memorandum of appearance dated 4th November 2002 and defence dated 7th November 2003 filed at the Central Registry but now in this file be and are hereby deemed to have been duly filed. The Plaintiff shall have all its thrown-away costs which shall include the costs of this application. Such costs may be agreed or taxed, and shall be payable forthwith. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF MARCH, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 10TH DAY OF MARCH, 2006.