[2004] KEHC 1609 (KLR)
The court exercised its discretion to set aside the interlocutory judgment because the defendants' failure to file a defence was attributable to the mistakes and omissions of their previous advocates, not to any deliberate inaction or disregard of the court process. The dispute concerns fundamental issues of title...
Source-derived case information.
- Citation
- [2004] KEHC 1609 (KLR)
- Parties
- Plaintiff: Sabry Omar Hashim; Defendant: Mohammed Hassan; Defendant: Kassim Hassan
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 317 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application to set aside interlocutory judgment allowed; judgment set aside; leave to file defence granted; costs to respondent
- Legal Topics
- Setting Aside Judgment, Interlocutory Judgment, Fraud in Land Transactions, Title Challenges, Late Filing of Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sabry Omar Hashim
Plaintiff
Mohammed Hassan
Defendant
Kassim Hassan
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the defendants should be set aside to allow them to file a defence out of time.
- 2 Whether the defendants' failure to file a defence was due to mistakes or omissions of their advocates and if this constitutes sufficient cause.
- 3 Whether allegations of fraud in the acquisition of land title justify reopening the case and allowing the defendants to be heard.
Ratio Decidendi
The court exercised its discretion to set aside the interlocutory judgment because the defendants' failure to file a defence was attributable to the mistakes and omissions of their previous advocates, not to any deliberate inaction or disregard of the court process. The dispute concerns fundamental issues of title to land and allegations of fraud, which, if proved, could invalidate the plaintiff's claim to the property. The court held that justice demands the defendants be given an opportunity to be heard, especially where the consequences of the judgment are significant and the defendants were previously acquitted of related criminal charges. The court further noted that it is not its...
Court Disposition
application to set aside interlocutory judgment allowed; judgment set aside; leave to file defence granted; costs to respondent
Orders
- Interlocutory judgment entered on 11/12/2003 is set aside.
- Defendants are granted leave to file defence within seven days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 317 OF 2002
SABRY OMAR HASHIM………………………………….PLAINTIFF
=V E R S U S=
1. MOHAMMED HASSAN…………………….1ST DEFENDANT
2. KASSIM HASSAN………………………….2ND DEFENDANT
R U L I N G
By application dated 27/1/04 brought under Section 10 Judicature Act, Cap.8. And also under Order IXA rule 10 & 11, Order 21 rules 22 and Section 3A and 91 of Civil Procedure Act, Cap.21. The main order sought is for setting aside interlocutory judgment entered herein on 11/12/2003 and to allow the Defendant to file Defence out of time. Application is grounded on the grounds set out in the application and that the failure to take necessary steps to file defence was due to the mistakes and omissions of the advocates then acting for Applicant and that the suit is based on fraud and it is just that the Defendants should be heard.
It is to be noted that the dispute concerns land, the title and possession of which is now in the Respondent. However, the law does not prohibit a party from challenging a title where fraud is alleged and proved. In this case the Defendants were charged with criminal cases in respect of the transaction but were acquitted on appeal by this court. There is remedy if the Defendants are successful.
On the facts of this case it is my view that the dispute is so fundamental that if the contract of sale is invalidated the Respondent has nothing to stand on. Title Deed cannot confer an interest in land if not properly grounded on an agreement of purchase. Any agreement can be invalidated if the court is satisfied that the same was not entered lawfully. In the circumstances and seeing that the Applicants were let down by their legal advisers I exercise my discretion and set aside judgment.The Defendants shall be at liberty to defend the suit.
I notice in HCC. No. 244 of 2003 I allowed an application to strike out the suit on the ground that that suit was raising similar issues as in this suit and therefore this suit being first in time was sustained. There is exhibited now a Notice of Appeal against that my ruling. It is not clear whether that Appeal has been pursued.
It is not the duty of the court to pursue a policy whereby an aggrieved party is kept out of the judgment seat.
As I have said above the circumstances of this suit demands that the Defendants be given a chance to be heard. However, they shall pay to Respondent/Plaintiff all thrownaway costs.
Judgment is therefore set aside and orders granted as prayed. Leave is therefore granted to the Applicants to file defence within the next seven days from the date hereof. Costs to the Respondent.
Dated this 16th day of July, 2004.
JOYCE KHAMINWA
J U D G E
Mr. Were
I apply for a copy of Ruling and proceedings. I apply for stay of order of court. I apply for leave to appeal. Court
1) Right of Appeal is as of right.
2) Copies to be provided upon payment of copying charges.
3) Temporary stay for 7 days is granted to make a formal application.
JOYCE KHAMINWA, J.
16/7/2004
Khaminwa, J.Chege – Court Clerk
Mr. Were – for Ananda
N/A – for Oddiaga
Ruling read in their presence in Open Court.
JOYCE KHAMINWA, J.