[1998] KEHC 188 (KLR)
The court found that the defendant had sufficiently explained the failure of its counsel to appear when the exparte judgment was entered. Since exparte judgments are not on merit and some of the reliefs sought by the plaintiff required formal proof, which was not conducted, the court held that no injustice would be...
Source-derived case information.
- Citation
- [1998] KEHC 188 (KLR)
- Parties
- Plaintiff: Ramco Investment Ltd; Defendant: Raju Estate Agency Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 607 of 1995
- Procedural Posture
- Civil Case / Application to Set Aside Exparte Judgment and Stay Execution
- Outcome
- Application allowed. Exparte judgment set aside and stay of execution granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Exparte Judgment, Setting Aside Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramco Investment Ltd
Plaintiff
Raju Estate Agency Ltd
Defendant
Procedural Posture
Civil Case / Application to Set Aside Exparte Judgment and Stay Execution
Legal Issues
- 1 Whether the exparte judgment entered against the defendant should be set aside.
- 2 Whether a stay of execution of the decree should be granted pending hearing on the merits.
Ratio Decidendi
The court found that the defendant had sufficiently explained the failure of its counsel to appear when the exparte judgment was entered. Since exparte judgments are not on merit and some of the reliefs sought by the plaintiff required formal proof, which was not conducted, the court held that no injustice would be occasioned to the plaintiff by setting aside the judgment. The court therefore exercised its discretion to set aside the exparte judgment and granted a stay of execution, subject to the defendant paying the costs of the application.
Court Disposition
Application allowed. Exparte judgment set aside and stay of execution granted.
Orders
- Exparte judgment set aside.
- Stay of execution of the decree granted.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 607 OF 1995
RAMCO INVESTMENTLTD.................................................................................PLAINTIFF
versus
RAJU ESTATE AGENCY LTD.......................................DEFENDANT
RULING
This is an application by the defendant by way of Chamber Summons under Order 9 of the Civil Procedure Rules and Order 21 Rule 22 to set aside exparte judgment and stay execution of the decree herein.
The exparte judgment was entered in favour of the plaintiff on an application for summary judgment. The learned counsel for the defendant failed to appear on that day. The failure to appear has been sufficiently explained in the affidavit sworn in support of this application. Since the exparte judgment is never on merit I believe no injustice will be occasioned to the plaintiff if orders sought are given. I note also from the pleadings that some of the prayers sought require formal proof which was not called in this case.
Accordingly, the orders sought are hereby granted to the defendant/applicant who shall pay the costs of this application. Orders accordingly
Dated and delivered at Nairobi this 31st day of July 1998
A. MBOGHOLI MSAGHA
JUDGE
Morara for respondent
Tiego for Billing for applicant