[2013] KEHC 844 (KLR)
The court found that the interlocutory judgment entered against the 2nd, 3rd and 4th defendants was irregular because the plaint did not contain a claim for liquidated or pecuniary damages, as required by the then Order IXA of the Civil Procedure Rules. As such, the judgment was set aside ex debito justitiae, as a...
Source-derived case information.
- Citation
- [2013] KEHC 844 (KLR)
- Parties
- Plaintiff: Silveria Muria Nkonge; Defendant: Simon Murithi alias Simon Ishmael; Defendant: Elkana Mutembei; Defendant: Edward Mugo M'Mbauni; Defendant: Julius Mwebia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 83 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed; interlocutory judgment set aside; no order as to costs
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Judgment, Setting Aside Judgment, Default Judgment, Liquidated Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silveria Muria Nkonge
Plaintiff
Simon Murithi alias Simon Ishmael
Defendant
Elkana Mutembei
Defendant
Edward Mugo M'Mbauni
Defendant
Julius Mwebia
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the 2nd, 3rd and 4th defendants should be set aside as a matter of right due to irregularity.
- 2 Whether the absence of a claim for liquidated damages in the plaint rendered the interlocutory judgment irregular under the then Order IXA of the Civil Procedure Rules.
- 3 Whether the delay by the defendants in filing the application to set aside the judgment should affect the court's discretion.
Ratio Decidendi
The court found that the interlocutory judgment entered against the 2nd, 3rd and 4th defendants was irregular because the plaint did not contain a claim for liquidated or pecuniary damages, as required by the then Order IXA of the Civil Procedure Rules. As such, the judgment was set aside ex debito justitiae, as a matter of right, without the need to consider the other arguments raised. However, the court noted that the defendants were guilty of inordinate delay in bringing the application and therefore declined to award costs to them. The defendants were granted leave to file their defences within 45 days.
Court Disposition
application allowed; interlocutory judgment set aside; no order as to costs
Orders
- The interlocutory judgment entered against the 2nd, 3rd and 4th defendants is set aside with no order as to costs.
- The defendants do file their defence/defences within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 83 OF 2007
SILVERIA MURIA NKONGE........................................................................PLAINTIFF
VERSUS
SIMON MURITHI alias SIMON ISHMAEL......................................1ST DEFENDANT
ELKANA MUTEMBEI.......................................................................2ND DEFENDANT
EDWARD MUGO M'MBAUNI..........................................................3RD DEFENDANT
JULIUS MWEBIA...............................................................................4TH DEFENDANT
R U L I N G
This application is dated 24th day of July, 2009 and seeks Orders:
THATthis honourable court be pleased to set aside the Exparte Interlocutory Judgment herein together with all consequential orders arising therefrom and allow the defendant to defend this suit in its merit.
THAT the Defendant be granted leave to file his defence, this case does proceed for hearing on merit and the 2nd, 3rd and 4th defendants' defence on record be deemed as duly filed.
THAT costs of this application be in the cause.
The Applicants submitted as follows:
The Interlocutory Judgment should be set aside Ex-Debito Justitiae as the Plaint contained no claim for liquidated damages as required by the then Order IXA of the defunct Civil Procedure Rules. They contended that the proper procedure would have been for the plaintiff to have set the case down for hearing as enunciated by the then Justice Ringera in the case of Abraham K. Kiptanui V. Delphis Bank Ltd and Another.
A lot of time was spent arguing Interlocutory Applications as a result of which the issues of filing a Memo of Appearance and a defence was forgotten. It can be discerned from the pleadings in the Court file that the defendants had all along harboured the intention to defend the suit.
The 2nd, 3rd and 4th defendants proffered the following authorities:-
The Civil Procedure Act
The Civil Procedure rules, 2010
HCCC No. 1864 of 1999 (Abraham Kiptanui V Delphis Bank Ltd & Another)
The Plaintiff submitted as follows:
The application was unmerited. The suit was filed on 31. 7.2007 and Summons were served upon the 2nd, 3rd and 4th defendants. Appearances were entered on 14. 8.2007 and 14. 9.2007. There was a Notice of Appointment of an advocate but there was no defence filed as required. As a result, an Interlocutory Judgment was properly entered for the plaintiff against the 2nd, 3rd and 4th defendants.
The 2nd, 3rd and 4th defendants filed an application to set aside the Interlocutory Judgment on 24. 7.2009 two years after the judgment was entered against them. This was an inordinate delay and setting aside the judgment would prejudice the plaintiff greatly as the land records, which the plaintiff said were fraudulently changed would remain.
The Interlocutory Judgment was entered properly. Otherwise litigation would never come to an end. As the Civil Procedure Rules only allowed 14 days, the 2nd, 3rd and 4th defendants should have filed their defences in good time and not come to court to seek the setting aside of the Interlocutory Judgment.
The plaintiff relied on the cases of Shah V. Mbogo and Mbogo V. Shah to argue that indolent defendants should not enjoy the Court's discretion to set aside an ex-parte Interlocutory Judgment.
The plaintiff proffered the following authorities:
Shah V Mbogo and Another [1967] E.A 116.
Mbogo and Another V. Shah [1968] E. A 93.
The 1st defendant associated himself with the submissions of the plaintiff.
I have considered the averments and submissions by the parties. I will deal with the argument that the defendants were entitled to the setting aside of the Interlocutory Judgment Ex-Debito Justitiae as under Order IXA of the defunct Civil Procedure Rules, the Plaint had no claim for liquidated or pecuniary damages. I have carefully examined the said order and find that it supports the submission by the 2nd, 3rd and 4th defendants. In the circumstances, I find the Interlocutory Judgment entered in this suit irregular. It should be set aside as a matter of right. I will, therefore, not pronounce myself on the other submissions.
I do consider that the 2nd, 3rd and 4th defendants were guilty of inordinate delay before they filed this application. I will, therefore, not award costs in this application.
It is ordered as follows:
The Interlocutory Judgment entered against the 2nd, 3rd and 4th defendants is set aside with no order as to costs.
The Defendants do file their defence/defences withing 45 days from today.
Dated and delivered in Open Court this 30th day of September, 2013 in the presence of :
Cc Mwonjaru/Daniel
Omari h/b Nyaga Nyamu for Plaintiff
2nd, 3rd and 4th defendants present
P. M. NJOROGE
JUDGE