[2005] KEHC 598 (KLR)
The court found that the applicant's failure to attend court was due to the hearing notice being served on a former advocate who was deceased and thus unable to inform the applicant. The applicant only became aware of the judgment after enforcement proceedings commenced. The court held that its discretion to set...
Source-derived case information.
- Citation
- [2005] KEHC 598 (KLR)
- Parties
- Plaintiff: Nationwide Finance Company Ltd; Defendant: Gersen Micheni Musa; Defendant: Mariba Omungatia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3868 of 1991
- Procedural Posture
- Civil Case / Application to Set Aside Ex Parte Judgment
- Outcome
- ex parte judgment set aside; costs to plaintiff
- Judges
- JL Osiemo
- Legal Topics
- Setting Aside Ex Parte Judgment, Court Discretion, Service of Process, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nationwide Finance Company Ltd
Plaintiff
Gersen Micheni Musa
Defendant
Mariba Omungatia
Defendant
Procedural Posture
Civil Case / Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment should be set aside due to non-attendance caused by service on a deceased advocate.
- 2 Whether the applicant has provided a sufficient excuse for failing to attend court.
- 3 Whether there is inordinate delay in bringing the application to set aside judgment.
Ratio Decidendi
The court found that the applicant's failure to attend court was due to the hearing notice being served on a former advocate who was deceased and thus unable to inform the applicant. The applicant only became aware of the judgment after enforcement proceedings commenced. The court held that its discretion to set aside ex parte judgment should be exercised to avoid injustice or hardship resulting from excusable mistake or error. There was no evidence of deliberate evasion or intent to obstruct justice by the applicant. Accordingly, the ex parte judgment was set aside to prevent injustice, with costs awarded to the plaintiff.
Court Disposition
ex parte judgment set aside; costs to plaintiff
Orders
- The ex parte judgment entered on 11th February 1994 in favour of the plaintiff is set aside.
- The defendant will pay the plaintiff costs of this application, to be agreed or taxed by the Deputy Registrar.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 3868 of 1991
NATIONWIDE FINANCE COMPANY LTD…………......…..………..……PLAINTIFF
VERSUS
GERSEN MICHENI MUSA…………………………………....……1ST DEFENDANT
MARIBA OMUNGATIA…………………………..…………………2ND DEFENDANT
RULING
This is an application to set aside an ex parte judgment and decree under Order IXB Rule 8 of the Civil Procedure Rules. The application is supported by an affidavit sworn by Genson Muchemi Musa. In the said affidavit it is deponed that failure to attend court when the suit was heard was due to the fact that service was effected on the former advocate on record who was at the time sick and has since passed away. He gave his name as the late R.O. Onyimbo.
It is also deponed that there is a good defence on record to the plaintiffs’ claim.
The application is opposed on the grounds that there is really no good excuse for failure to appear in court during the hearing. There is no evidence that the said advocate is dead or when he died. Further that there is inordinate delay in bringing this application.
The advocate who was representing the applicant is dead. The hearing proceeded ex parte because he did not appear. He was the one who was served with the hearing notice so that he could inform the applicant which never happened. The applicant only became aware that the suit had been decided when he was arrested by the court bailiff whose name he has given as Kamau pursuant to a decree issued by this court on 11th February 2005. He was not aware of all this.
The applicant is seeking the exercise of this court discretion.
Applying the principle that the court’s 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 not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice the motion should be allowed.
The ex parte judgment entered by this court in favour of the plaintiff on 11th February 1994 is set aside. The defendant will pay the plaintiff costs of this application to be agreed and if not to be taxed by the deputy Registrar.
Dated and delivered this 19th day of October 2005.
J.L.A. OSIEMO
JUDGE