[2004] KEHC 2066 (KLR)
The court found that the defendant had demonstrated sufficient cause for non-attendance at the hearing due to a significant religious occasion, which was not gazetted and specific to their Moslem sect. The court accepted the advocate's explanation regarding the religious importance and the inability to attend court...
Source-derived case information.
- Citation
- [2004] KEHC 2066 (KLR)
- Parties
- Plaintiff: Pan African Syndicate Ltd; Defendant: E.A. Molasses EPZ Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 861 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Judgment
- Outcome
- application to set aside judgment allowed conditionally
- Legal Topics
- Setting Aside Judgment, Discretion of Court, Adjournment, Religious Observance, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan African Syndicate Ltd
Plaintiff
E.A. Molasses EPZ Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the court should set aside the judgment entered in the absence of the defendant due to religious observance.
- 2 Whether the defendant's failure to attend court on a religious occasion constitutes sufficient cause to set aside the judgment.
Ratio Decidendi
The court found that the defendant had demonstrated sufficient cause for non-attendance at the hearing due to a significant religious occasion, which was not gazetted and specific to their Moslem sect. The court accepted the advocate's explanation regarding the religious importance and the inability to attend court on that date. Exercising its discretion, the court set aside the judgment entered on 25/11/03, conditional upon the defendant depositing Kshs.900,000 in court within thirty days. Failure to comply would result in reinstatement of the judgment and liberty for the plaintiff to execute. The court balanced the interests of justice, recognizing the defendant's willingness to defend...
Court Disposition
application to set aside judgment allowed conditionally
Orders
- Judgment entered on 25/11/03 is set aside on condition that the defendant deposits Kshs.900,000 in court within thirty days.
- In default of deposit, the judgment shall be reinstated and the plaintiff shall be at liberty to execute.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASA
CIVIL CASE NO. 861 OF 1995 PAN AFRICAN SYNDICATE LTD…………………………PLAINTIFF =V E R S U S= E.A. MOLASSES EPZ LTD……………………………DEFENDANT R U L I N G
On 25th November, 2003 this court rejected application to adjourn suit and proceeded to hear and enter judgment for the Plaintiff in this suit. At that time the grounds advanced were similar as grounds advanced in this application that the day was on religious occasion not Gazetted to a section of some Moslem Sect to which the advocate Ghalia and his clients and the witnesses belonged. And therefore they were unable to attend court on their Holy date.
Mr. Ghalia himself has impressed upon this court the religious importance of the ceremony and has indicated he could not set aside his religious obligations in order to attend court.
The court has discretion to reconsider its decision in a matter such as this. The Defendant had filed its defence and was willing to defend the case were it not the interruption by religious matters.
In the circumstances, I exercise discretion in favour of the Defendant.
Judgment entered on 25/11/03 is hereby set aside on condition that the sum of Kshs.900,000/- is deposited by Defendant in court within the next thirty (30) days. In default the Judgment shall be reinstated and the Plaintiff shall be at liberty to execute.
Dated this 30th day of July, 2004. JOYCE KHAMINWA J U D G E 30/7/04
Mr. Kingo – H/B
Mr. Otieno – H/B
Ruling read in their presence.
JOYCE KHAMINWA, J.