[2004] KEHC 1031 (KLR)
The High Court found that the trial magistrate erred in entering judgment for the Plaintiff when an advocate was present for the Defendant, as this did not constitute a true ex parte situation. Furthermore, the Plaintiff failed to call evidence in support of his case, rendering the judgment without basis. The...
Source-derived case information.
- Citation
- [2004] KEHC 1031 (KLR)
- Parties
- Appellant: Norman Kairu Muriithi; Respondent: Paul Wanjohi Wahome
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- GG Okwengu
- Legal Topics
- Setting Aside Judgment, Ex Parte Proceedings, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Norman Kairu Muriithi
Appellant
Paul Wanjohi Wahome
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in entering judgment for the Plaintiff when an advocate was present for the Defendant.
- 2 Whether the trial magistrate erred in failing to set aside the ex parte judgment despite an apparent error on the face of the record.
- 3 Whether the discretion to set aside judgment was properly exercised to avoid injustice or hardship.
Ratio Decidendi
The High Court found that the trial magistrate erred in entering judgment for the Plaintiff when an advocate was present for the Defendant, as this did not constitute a true ex parte situation. Furthermore, the Plaintiff failed to call evidence in support of his case, rendering the judgment without basis. The magistrate also erred in refusing to set aside the judgment despite an apparent error on the face of the record and the potential for injustice or hardship to the Defendant. The appellate court exercised its discretion to set aside the orders of the lower court and allowed the appeal, substituting the impugned order with one allowing the application to set aside the judgment.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The order of 12th April 2001 is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT CIVIL APPEAL NO. 48 OF 2001
NORMAN KAIRU MURIITHI ……………………………………… APPELLANT
VERSUS
PAUL WANJOHI WAHOME …………………………………….. RESPONDENT
(Appeal from original Ruling in Chief Magistrate’s Court Civil Case No. 19 of 2000
dated 12 th April 2001 by Mr. W. K. Korir – R.M. – Nyeri)
J U D G M E N T
Norman Kairu Muriithi is aggrieved by the ruling made by the Resident Magistrate Nyeri on 12th April 2001 in which the magistrate rejected his application to set aside the judgment entered against him on 16th March 2001.
It is apparent from the court record that on 16th March 2001, when the suit came up for hearing, the Plaintiff and his advocate were ready to proceed but the defence advocate through an advocate holding brief for him asked the court for an adjournment. The court did not consider the application for adjournment but instead decided to enter judgment in favour of the Plaintiff since the Defendant was not in court.
Order IXB rule 3 which allows a Plaintiff to proceed exparte in the absence of a Defendant states as follows:-
“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the Plaintiff attends, if the court is satisfied .
(a) that Notice of hearing was duly served it may proceed ex -parte”.
Two things arise herein first, the court could not talk of proceeding ex-parte as there was an advocate holding brief for the defence counsel. It was not a situation where only the Plaintiff attended court. Secondly even if, the matter was to proceed ex-parte the proper procedure is for the Plaintiff to call evidence in proof of his case.
In this case the Plaintiff did not call any witness but the court merely proceeded to enter judgment which judgment had no basis. I find that the trial magistrate erred in entering judgment for the Plaintiff in the manner that he did.
As concerns the application to set aside the judgment which was the subject of the ruling dated 12th April 2001it is apparent that the trial magistrate erred in failing to set the judgment aside when there was an error apparent on the face of the record as the judgment was irregularly entered.
Further the trial magistrate erred in failing to exercise his discretion to set aside the exparte judgment so as to avoid the injustice or hardship that was resulting from the mistake of counsel in failing to contact the Defendant. In all the circumstances of this case I find that there is sufficient cause to set aside the order made by the Resident Magistrate on 12th April 2001.
Accordingly I allow this appeal set aside the order of 12th April 2001 and substitute it thereof with an order allowing the Appellants application dated 23rd March 2001 and setting aside the judgment entered on 16th March 2001. The Appellant shall further have costs of this appeal. Those shall be the orders of this court.
Dated signed and delivered at Nyeri this 25 th day of October 2004.
H. M. OKWENGU
JUDGE