[2005] KEHC 1740 (KLR)
The court found that the applicant had been guilty of delaying the prosecution of his claim and had failed to fix a hearing date. The court was not satisfied that the applicant's explanation for non-appearance was sufficient to warrant the exercise of its discretion to set aside the ex-parte judgment. Additionally,...
Source-derived case information.
- Citation
- [2005] KEHC 1740 (KLR)
- Parties
- Applicant: Rajab Mohamed Suliman; Respondent: Burhan Marjani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2025 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Setting Aside Ex Parte Judgment, Judicial Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajab Mohamed Suliman
Applicant
Burhan Marjani
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the court should exercise its discretion to set aside the ex-parte judgment entered on 1.10.2003.
- 2 Whether the applicant's failure to attend the hearing was justified.
- 3 Whether the applicant has been guilty of delaying the hearing of the case.
Ratio Decidendi
The court found that the applicant had been guilty of delaying the prosecution of his claim and had failed to fix a hearing date. The court was not satisfied that the applicant's explanation for non-appearance was sufficient to warrant the exercise of its discretion to set aside the ex-parte judgment. Additionally, the existence of a prior judgment in HCCC No. 3093 of 97 restraining the plaintiff from interfering with the defendant's possession of the suit premises further weighed against granting the application. Consequently, the court declined to set aside the ex-parte judgment.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the ex-parte judgment is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 2025 of 1999 (OS)
RAJAB MOHAMED SULIMAN …………..………….APPLICANTVERSUSBURHAN MARJANI ……………………..……….. RESPONDENTRULING
The Applicants seeks to set aside an ex-parte Judgment given herein on the 1. 10. 2003. The Application is supported by three Affidavits. It is his case that the Plaintiff’ Advocate’s clerk believed the matter was not confirmed in the call over list of October, 2003. However, it was confirmed and the Plaintiff and his Advocate failed to appear on the hearing date.
The history of the case is one in which the Plaintiff has been reluctant to persue his claim. A Court has a discretion to set aside an ex-parte Judgment where just however if the court is of the view that the party has been guilty of delaying the hearing of the case as in this case by the Plaintiff failing to fix a hearing date, then a court will be reluctant to assist the Applicant. Further it appears from the Replying affidavit that in HCCC No.3093 of 97 the Defendant obtained Judgment against the Plaintiff in respect of the suit premises whereby an order was made on which the Plaintiff herein was restrained from interfering with the Defendant’s peaceful possession of the suit premises.
In the result I do not think this is a case where I should exercise my discretion to set aside the ex-parte Judgment herein.
In the result I dismiss this application with costs to the Respondent.
Dated and delivered at Nairobi this 17th day of June,2005
P.J. RANSLEY
JUDGE