[2015] KEHC 5567 (KLR)

[2015] KEHC 5567 (KLR)

The court found that the applicant's failure to attend court was excusable because the matter was not on the cause list for the material day, and her advocates were unable to locate the court file before the matter was heard and determined ex parte. The respondent did not satisfactorily rebut these averments....

Source-derived case information.

Citation
[2015] KEHC 5567 (KLR)
Parties
Applicant: S K E; Respondent: S S J
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
17 April 2015
Case Number
? 48 of 2013
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Outcome
application allowed
Judges
DN Musyoka
Legal Topics
Mental Capacity, Setting Aside Ex Parte Orders, Judicial Discretion, Service of Process
Source Language
english
Family and Children Civil Procedure Mental Capacity Setting Aside Ex Parte Orders Judicial Discretion Service of Process

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

S K E

Applicant

S S J

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders

Legal Issues

  1. 1 Whether the applicant has established sufficient grounds for the court to set aside or vacate the ex parte orders made on 3rd July 2014.
  2. 2 Whether the applicant's failure to attend court was excusable due to the matter not being on the cause list.

Ratio Decidendi

The court found that the applicant's failure to attend court was excusable because the matter was not on the cause list for the material day, and her advocates were unable to locate the court file before the matter was heard and determined ex parte. The respondent did not satisfactorily rebut these averments. Applying the principles governing the exercise of discretion to set aside ex parte orders, the court held that discretion should be exercised to avoid injustice or hardship resulting from excusable mistake or error. The court was persuaded that the applicant should not suffer injustice due to circumstances beyond her control and therefore allowed the application to set aside the ex...

Court Disposition

application allowed

Orders

  • The orders made by this court on 3rd July 2014 are hereby vacated.
  • The applicant is granted fourteen (14) days to file and serve a replying affidavit to the application dated 27th June 2014.