[1994] KEHC 82 (KLR)
The High Court found that the magistrate exercised his discretion correctly and in accordance with the law when he refused to set aside the ex parte judgment. The magistrate considered whether the appellant had a defence on merit and the reasons for the delay, and found no sufficient grounds to disturb the judgment....
Source-derived case information.
- Citation
- [1994] KEHC 82 (KLR)
- Parties
- Appellant: Municipal Council of Meru; Respondent: Harriet N. Mariene
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 96 of 1992
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Setting Aside Ex Parte Judgment, Exercise of Discretion, Default Judgment, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Meru
Appellant
Harriet N. Mariene
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the magistrate properly exercised discretion in refusing to set aside the ex parte judgment.
- 2 Whether the appellant had a defence on merit and provided sufficient reasons for delay in filing defence.
Ratio Decidendi
The High Court found that the magistrate exercised his discretion correctly and in accordance with the law when he refused to set aside the ex parte judgment. The magistrate considered whether the appellant had a defence on merit and the reasons for the delay, and found no sufficient grounds to disturb the judgment. The appellate court emphasized that it will not interfere with the lower court's exercise of discretion unless it is shown to be wrong in principle or perverse, which was not the case here. Therefore, the appeal was dismissed and the original judgment, including the award and interest, was upheld.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 96 OF 1992
MUNICIPAL COUNCIL OF MERU...................................................................APPELLANT
VERSUS
HARRIET N. MARIENE..................................................................................RESPONDENT
(From the original decision in Civil Suit No 264 of 1992 of the Resident Magistrate’s Court at Meru – JE Ashioya Esq RM)
JUDGMENT
By plaint dated 27th May, 1992 the respondent sued the appellant in the court below claiming Shs 57,074/-. Service was effected on the appellant’s Town Clerk on 28th May, 1992 at 10. 30 am. No appearance or defence was filed and on 15th June, 1992 an interlocutory judgment was entered for the respondent against the appellant.
The matter came up for formal proof on 1st July, 1992 but was adjourned as it appeared that counsel for appellant had filed an application dated 29th June, 1992 seeking to set aside the ex partejudgment. The learned magistrate listened pensively to the reasons adduced why no appearance or defence were filed. One of them was difficulties in tracing the file in time.
Delivering his ruling on 22nd July, 1992 the learned magistrate considered all the submissions made before him with utmost care. He considered whether the appellant had a defence on merit and the reasons for the delay in filing the defence. He found no good reasons for setting aside the ex partejudgment.
The learned magistrate was faced with an exercise of discretionary power. I echo the words of Lord Mansfield in Ret v Wilkes(1770) 4 Burr 2527:
“A discretion when applied to a Court of justice means sound discretion guided by law. It must be governed by rule and not by humour. It must not be arbitrary, vague and fanciful, but legal and regular.”
Nearer at home it has also been held that a Court on appeal will not interfere with the exercise of a discretion on an application for setting aside summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts, and that a mere denial is not a sufficient defence – Mugunga General Stores v Pepco Distributors Ltd2 KAR 89.
The learned magistrate in the exercise of his discretion considered the issues before him meticulously. He enunciated correct principles and properly evaluated whatever material had been placed before him.
I am unable to find any fault with the reasoning of the learned magistrate. I am satisfied he correctly exercised his discretion according to law.
For these reasons I dismiss this appeal with costs. The rate of interest was similarly within his discretion.
Dated and Delivered at Meru this 7th day of December 1994.
H.I.ONG'UDI
JUDGE