[2023] KEHC 20048 (KLR)
The court found that since the ex parte judgment was entered before the respondent was served with the amended plaint, the trial court was correct in setting aside the judgment. The appellant has two options: proceed with the appeal against the ruling that set aside the judgment or return to the trial court, serve...
Source-derived case information.
- Citation
- [2023] KEHC 20048 (KLR)
- Parties
- Appellant: Josiah Mwale; Respondent: Ali Cars Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 003 of 2021
- Procedural Posture
- Civil Appeal / Directions on Appeal and Case Management
- Outcome
- Appeal not determined on merits; matter remitted to trial court for fresh hearing.
- Judges
- AN Ongeri
- Legal Topics
- Setting Aside Judgment, Amended Pleadings, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Mwale
Appellant
Ali Cars Limited
Respondent
Procedural Posture
Civil Appeal / Directions on Appeal and Case Management
Legal Issues
- 1 Whether the trial court erred in setting aside the ex parte judgment entered on October 22, 2019.
- 2 Whether the appellant should proceed with the appeal or recommence proceedings in the trial court by serving the amended plaint.
Ratio Decidendi
The court found that since the ex parte judgment was entered before the respondent was served with the amended plaint, the trial court was correct in setting aside the judgment. The appellant has two options: proceed with the appeal against the ruling that set aside the judgment or return to the trial court, serve the amended plaint, allow the respondent to file an amended defence, and have the case heard afresh. Given the absence of a valid judgment on record, the court directed that the matter be remitted to the Chief Magistrate's Court for expedited hearing, in line with the constitutional imperative to avoid delay and technicalities.
Court Disposition
Appeal not determined on merits; matter remitted to trial court for fresh hearing.
Orders
- The Deputy Registrar shall forward the file to the Chief Magistrate for hearing.
- The Chief Magistrate is directed to expedite the hearing of the case.
Full Case Text
Judgment text and source record
26 paragraphs
Mwale v Ali Cars Limited (Civil Appeal 003 of 2021) [2023] KEHC 20048 (KLR) (Civ) (11 July 2023) (Directions)
Neutral citation: [2023] KEHC 20048 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 003 of 2021
AN Ongeri, J
July 11, 2023
Between
Josiah Mwale
Applicant
and
Ali Cars Limited
Respondent
Directions
1)The appellant filed CMCC No 4828 of 2016 on July 25, 2016 and the trial court entered interlocutory judgment on October 2, 2019 and proceeded with formal proof on the amended plaint which plaint was amended on July 29, 2019.
2)The trial court set aside the exparte judgment which was entered on October 28, 2018 upon finding that the hearing notice was served upon the respondents on October 26, 2018 before the appellant amended their plaint on July 29, 2019.
3)The appellant has appealed to this court against the trial court’s ruling delivered on February 28, 2020 which set aside the judgment entered on October 22, 2019.
4)Upon perusing the original file I find that the appellant has two options.
5)The first option is to proceed with the appeal against the ruling by Hon Gicheha delivered on February 28, 2020 which set aside the judgment entered by Hon Gichora on October 22, 2019.
6)The second option which is the better option since there is no judgment on record is go back to the trial court, serve the amended plaint and give the respondent an opportunity to file their amended defence and have the case start denovo.
7)The appellant will have a right of appeal if he is still aggrieved with the decision of the trial court.
8)Since this case has been in court since 2016, I direct that the Deputy Registrar of this court forwards the file to the Chief Magistrate for purpose of taking a hearing before the Chief Magistrate for hearing of this case.
9)The Chief Magistrate is directed to expedite this case in view of article 159 of theConstitution which mandates all courts and tribunals to dispense justice without delay and without undue regard to procedural technicalities.
10)The original filed will be mentioned on July 25, 2023 before the Chief magistrate for purposes of expediting the same.
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of July, 2023. .........................................A. N. ONGERIJUDGEIn the presence of:............................for the Appellant.......................... for the Respondent