[2008] KEHC 825 (KLR)
The court found that the defendant's advocate had provided medical evidence of illness, which constituted sufficient cause for her absence. Although an advocate holding brief was present and offered no evidence, the court exercised its discretion under section 3A of the Civil Procedure Act to allow the application...
Source-derived case information.
- Citation
- [2008] KEHC 825 (KLR)
- Parties
- Plaintiff: Mary Waithira Muiruri; Defendant: Kuria Ng’ang’a
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 886 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Judgment
- Outcome
- Application to set aside judgment allowed with throw away costs to the plaintiff.
- Legal Topics
- Setting Aside Judgment, Eviction Orders, Fraudulent Title, Absence of Counsel, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Waithira Muiruri
Plaintiff
Kuria Ng’ang’a
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment entered in the absence of the defendant and her advocate should be set aside.
- 2 Whether illness of the advocate constitutes sufficient cause for non-attendance.
- 3 Whether throw away costs should be awarded to the plaintiff.
Ratio Decidendi
The court found that the defendant's advocate had provided medical evidence of illness, which constituted sufficient cause for her absence. Although an advocate holding brief was present and offered no evidence, the court exercised its discretion under section 3A of the Civil Procedure Act to allow the application to set aside the judgment. The court considered that justice would be better served by allowing the defendant an opportunity to be heard. However, to compensate the plaintiff for the inconvenience, the court awarded throw away costs of Ksh. 5,000 to be paid by the advocate for the defendant.
Court Disposition
Application to set aside judgment allowed with throw away costs to the plaintiff.
Orders
- Judgment entered in favour of the plaintiff is set aside.
- Defendant to pay Ksh. 5,000 as throw away costs to the plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Suit 886 of 2002
MARY WAITHIRA MUIRURI…...…………………………..PLAINTIFF
VERSUS
KURIA NG’ANG’A……………………………….……….DEFENDANT
RULING
SETTING ASIDE JUDGMENT
APPLICATION 31 JULY 2007
I. Background
1. The parties are in dispute over the ownership of land. The plaintiff seeks orders to evict the defendant whilst the defendant seeks orders to declare the plaintiff title was obtained by fraud.
2. On the second day fixed for hearing of this trial, the defendant and her advocate were absent. An advocate holding brief offered no evidence on their behalf.
3. Judgement was accordingly entered in favour of the plaintiff. The counter claim by the defendant was dismissed
II. 31. 7.07 Application
4. By an application of 31 July 2007 the defendant prayed to set a side this judgement. This was on grounds that the advocate for the plaintiff was ill.
5. The application was opposed by the advocate for the respondent.
IV. Held/Findings
6. The defendant nor the advocate was in court. The said advocate stated she was ill. Her client should have been in court but was not. The advocate has shown this court her medical papers of her illness.
7. I would allow this application under section 3 A and not order 1XB r 8 Civil Procedure Rule as there had been an advocate present during the trial who offered no evidence.
8. I would award Ksh.5,000/- throw away costs to the plaintiff to be paid by advocate for 1st defendant.
DATED THIS 29TH DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
S.O. Oyugi instructed by S.O. Oyugi & Co. Advocates for the plaintiff/ respondent
L.M. Njuguna & Co. Advocates for the defendant/applicant – present