[2018] KEHC 9660 (KLR)
The court found that, despite the age of the case and the plaintiff's desire for finality, the reasons advanced by the defendants for non-appearance and the issues raised in their draft defences justified setting aside the ex parte judgment. The court emphasized the importance of hearing parties on merit and...
Source-derived case information.
- Citation
- [2018] KEHC 9660 (KLR)
- Parties
- Plaintiff: Reuben Odhiambo; Defendant: Duke Rading; Defendant: Wangethi Mwangi; Defendant: Nation Media Group Limited; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 42 of 2008
- Procedural Posture
- Civil Suit / Ruling on Applications to Set Aside Ex Parte Judgment and for Leave to Defend
- Outcome
- Application allowed; ex parte judgment set aside; defendants granted leave to defend; plaintiff awarded costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Judgment, Ex Parte Proceedings, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Odhiambo
Plaintiff
Duke Rading
Defendant
Wangethi Mwangi
Defendant
Nation Media Group Limited
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Applications to Set Aside Ex Parte Judgment and for Leave to Defend
Legal Issues
- 1 Whether the interlocutory and ex parte judgment against the defendants should be set aside.
- 2 Whether the defendants should be granted leave to file their defences out of time.
- 3 Whether the plaintiff is entitled to costs of the applications.
Ratio Decidendi
The court found that, despite the age of the case and the plaintiff's desire for finality, the reasons advanced by the defendants for non-appearance and the issues raised in their draft defences justified setting aside the ex parte judgment. The court emphasized the importance of hearing parties on merit and ensuring that no party is condemned unheard, particularly where there are triable issues. The court exercised its discretion to set aside the judgment in the interests of justice, ordered the defendants to file their defences within seven days, and directed compliance with pre-trial procedures to expedite the hearing. The plaintiff was awarded costs of the applications.
Court Disposition
Application allowed; ex parte judgment set aside; defendants granted leave to defend; plaintiff awarded costs.
Orders
- The judgment dated 7th October, 2015 is set aside entirely.
- The 2nd and 3rd defendants shall file their defence within 7 days from the date of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. 42 OF 2008
REUBEN ODHIAMBO..................................PLAINTIFF
VERSUS
DUKE RADING
WANGETHI MWANGI
NATION MEDIA GROUP LIMITED
THEATTORNEY GENERAL................DEFENDANTS
RULING
There is a judgment on record in favour of the plaintiff herein delivered on 7th October, 2017 following a formal proof in which the plaintiff and his witness were heard ex parte. The ex parte proceedings followed an interlocutory judgment entered against the 3rd and 4th defendants for failure to enter appearance or file a defence to the suit.
There are now two applications on record to set aside the said judgment. The first application is dated 21st December, 2015 on behalf of the 2nd and 3rd defendants while the second application is dated 6th January, 2016 by the 4th defendant. The application by the 2nd and 3rd defendants seeks orders of stay of execution, the setting aside of the interlocutory judgment and leave to file and serve the defence. The application by the 4th defendant seeks an order of stay of execution and setting aside of the said judgment. I have read the supporting affidavits in respect of the two applications
The 4th defendant supports the application by the 2nd and 3rd defendants. On the other hand the plaintiff opposes both applications and has filed a replying affidavit to that effect. I have related the application and the averments in the affidavits to the provisions of law cited. Counsel for the parties agreed that the ruling herein be based on affidavit evidence on record.
Whereas the 4th defendant had filed a defence to the suit, on the date of hearing counsel did not appear, and has given reasons for that absence in the affidavit in support of the application. On the other hand, the 2nd and 3rd defendants contend that whoever was served with summons to enter appearance had no authority to receive summons and therefore the pleadings were not served upon them.
Annexed to the application of the 2nd and 3rd defendants is a statement of defence running into 19 paragraphs raising several issues which the 2nd and 3rd defendants plead should go for trial. I agree that no party should be condemned unheard but at the same time, consider that this is a very old case in which the plaintiff is anxious to have out of his way. That notwithstanding, I am persuaded by the reasons given, and the issues raised in the draft defences that the defendants should be heard on merit.
That being the case, I allow the application and order that the judgment herein dated 7th October, 2015 be and is hereby set aside entirely. The 2nd and 3rd defendants shall cause their defence to be filed within 7 days from today. The parties shall comply with Order 11 of the Civil Procedure Rules within 30 days thereafter. Upon compliance, the case shall be listed for hearing on priority. The plaintiff shall have the costs occasioned by these applications.
Dated, signed and delivered at Nairobi this 25th day of October, 2018
A. MBOGHOLI MSAGHA
JUDGE