[1984] KEHC 4 (KLR)

[1984] KEHC 4 (KLR)

The court found that the defendant/applicant had a valid defence on record and that his failure to attend the hearing was due to reliance on his advocate, not deliberate evasion or obstruction of justice. The court emphasised its wide discretion to set aside ex parte judgments to avoid injustice or hardship,...

Source-derived case information.

Citation
[1984] KEHC 4 (KLR)
Parties
Plaintiff: Sammy Maina; Defendant: Stephen Muriuki
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
14 March 1984
Case Number
Civil Case 1079 of 1980
Procedural Posture
Civil Application / Application to Set Aside Ex Parte Judgment and Stay Execution
Outcome
application allowed; ex parte judgment set aside; costs of application to plaintiff/respondent
Legal Topics
Setting Aside Ex Parte Judgment, Discretion of Court, Defence on Merits, Costs Award
Source Language
english
Civil Procedure Setting Aside Ex Parte Judgment Discretion of Court Defence on Merits Costs Award

Source-derived case record

Summary, issues, holding and outcome

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Parties

Sammy Maina

Plaintiff

Stephen Muriuki

Defendant

Procedural Posture

Civil Application / Application to Set Aside Ex Parte Judgment and Stay Execution

Legal Issues

  1. 1 Whether the ex parte judgment delivered on June 30, 1983 should be set aside.
  2. 2 Whether the defendant/applicant has provided sufficient cause for non-attendance at the hearing.
  3. 3 Whether the court should exercise its discretion to allow the defendant to defend the suit on the merits.

Ratio Decidendi

The court found that the defendant/applicant had a valid defence on record and that his failure to attend the hearing was due to reliance on his advocate, not deliberate evasion or obstruction of justice. The court emphasised its wide discretion to set aside ex parte judgments to avoid injustice or hardship, particularly where the applicant is an illiterate person and there is no suggestion that the defence is a sham. The court concluded that justice would best be served by setting aside the ex parte judgment and allowing the matter to be heard on its merits, provided the applicant pays the costs occasioned by the application.

Court Disposition

application allowed; ex parte judgment set aside; costs of application to plaintiff/respondent

Orders

  • The ex parte judgment of June 30, 1983 is set aside.
  • The defendant/applicant shall pay forthwith to the plaintiff/respondent all the costs occasioned by this application.