[2004] KEHC 2514 (KLR)
The court found that the applicant's failure to file a defence was due to inadvertence and excusable mistake by his advocates, rather than deliberate delay or obstruction. The applicant was misled by his initial advocate and subsequent advocates failed to regularize representation or inform him of the status of his...
Source-derived case information.
- Citation
- [2004] KEHC 2514 (KLR)
- Parties
- Plaintiff: National Bank of Kenya; Defendant: Jackson Mboro Olwenda
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 146 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application allowed. Ex-parte judgment and decree set aside. Leave granted to file and serve defence out of time. Costs in the cause.
- Legal Topics
- Setting Aside Ex Parte Judgment, Default of Defence, Exercise of Discretion, Application for Leave to Defend
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya
Plaintiff
Jackson Mboro Olwenda
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex-parte judgment and decree entered on 18th July, 1997 should be set aside.
- 2 Whether the applicant should be granted leave to file and serve a defence out of time.
Ratio Decidendi
The court found that the applicant's failure to file a defence was due to inadvertence and excusable mistake by his advocates, rather than deliberate delay or obstruction. The applicant was misled by his initial advocate and subsequent advocates failed to regularize representation or inform him of the status of his defence. The applicant was also working abroad, which contributed to the confusion. The court held that it would be in the interest of justice and fair play to allow the applicant to participate fully in the trial. Accordingly, the court exercised its discretion to set aside the ex-parte judgment and decree, granting the applicant leave to file and serve a defence out of time.
Court Disposition
Application allowed. Ex-parte judgment and decree set aside. Leave granted to file and serve defence out of time. Costs in the cause.
Orders
- The ex-parte judgment and decree of 18th July, 1997 are set aside.
- The applicant is granted leave to file and serve the defence out of time.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL SUIT NO. 146 OF 1997
NATIONAL BANK OF KENYA……………………………….PLAINTIFF
VERSUS
JACKSON MBORO OLWENDA……………………………DEFENDANT
RULING
The application has been brought through chamber summons under Order IX A R.9, 10 and 11 of the Civil Procedure Rules and all other enabling provisions of the law. The main prayer that the application seeks is:
- That the Honourable Court be pleased to set aside the judgment and decree of the 18th July, 1997 and to consequently grant leave to the applicant to file and serve the defence out of time.
In his submissions, Mr. Ogolla narrated how the applicant had instructed the firm of Momanyi Birundi, Advocate who later filed a Memorandum of Appearance on 20th May, 1997. Unfortunately, the said Advocate was not candid enough and informed the applicant that he had already filed a defence. Consequently, the applicant engaged the firm of Omondi, Waweru Advocates in Mombasa who also failed to file a Notice of Change of Advocate. They also never informed him that the former Advocate had failed to file any defence.
The applicant’s Counsel has explained that his client is an employee of Aga Khan Education Service and by then he was based in Karachi before being moved to several parts of the world.
I concur with Hon. Justice Visram in the case of National Bank of Kenya Vs Peter Komen Kima that the power of the Court to set aside an ex-parte judgment entered in consequence of non-appearance and default of defence is set out in Order IX A R.10 of the Rules in the following terms:
“Where judgment has been entered under this Order the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
In the case of Patel Vs E. A. Cargo Handling Services Ltd.
It was held that the discretion of the Court is not limited.
In the case of Maina Vs Muriuki.
Hon. Justice Emmanuel O’Kubasu as then he was deposed:
“The discretion to set aside ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a party which has deliberately sought or obstruct or delay the court of justice.”
Having considered all the matters before me, I am of the considered opinion that it would be in the interest of justice and fair play for the applicant to fully participate in the trial.
The upshot is that I hereby allow the application. Costs in the cause.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open Court in the presence of Mr. Mwangi for Ogolla for applicant.
MUGA APONDI
JUDGE
24TH FEBRUARY, 2004