[1998] KEHC 224 (KLR)
The court found that although the defendant's application to set aside the summary judgment did not comply with Order 50 Rule 7, which requires that the grounds of the application be stated in the summons, the omission was not fatal in the circumstances. Relying on the Court of Appeal's approach in National Bank of...
Source-derived case information.
- Citation
- [1998] KEHC 224 (KLR)
- Parties
- Plaintiff: Trans - National Finance Co; Defendant: Yabesh Omesa Mogala
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2395 of 1996
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Summary Judgment
- Outcome
- application allowed; summary judgment and consequential orders set aside; matter to proceed inter partes; costs to defendant
- Legal Topics
- Summary Judgment, Setting Aside Orders, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans - National Finance Co
Plaintiff
Yabesh Omesa Mogala
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Summary Judgment
Legal Issues
- 1 Whether the summary judgment entered in default of the defendant's attendance should be set aside.
- 2 Whether non-compliance with Order 50 Rule 7 is fatal to the defendant's application.
- 3 Whether the mistake of counsel should be visited upon the litigant.
Ratio Decidendi
The court found that although the defendant's application to set aside the summary judgment did not comply with Order 50 Rule 7, which requires that the grounds of the application be stated in the summons, the omission was not fatal in the circumstances. Relying on the Court of Appeal's approach in National Bank of Kenya v Ndungu Njau, the court held that the interest of justice required the application to be heard. The court accepted the explanation for the defendant's absence and determined that the mistake of counsel should not be visited upon the litigant. Accordingly, the court set aside the summary judgment and all consequential orders, allowing the matter to proceed inter partes,...
Court Disposition
application allowed; summary judgment and consequential orders set aside; matter to proceed inter partes; costs to defendant
Orders
- The order of 12th March, 1998 and all consequential orders are set aside.
- The application for summary judgment shall be listed for hearing on a date mutually convenient to both counsel.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2395 OF 1996
TRANS - NATIONAL FINANCE CO.........................................PLAINTIFF
-versus-
YABESH OMESA MOGALA................................................DEFENDANT
R U L I N G
On 12th March 1998, Hayanga J granted the plaintiff’s application for summary judgment “in default of attendance by defendant”.
The defendant has now moved the court for an order that the orders made on 12th March, 1998 be set aside and vacated and the application be heard inter-partes. The defendant’s application is supported by an affidavit sworn by the learned counsel for the defendant. It is brought under Order 50 Rule 1 and Order 35 Rule 10 of the Civil Procedure Rules. The application is opposed and grounds of objection have been filed.
While order 35 Rule 10 provides for the setting aside of a judgment entered under that order, procedure is not provided. Order 50 is therefore applicable. The defendants application is by way of Chamber Summons. It is a requirement for Order 50 Rule 7 that the grounds of the application shall be started generally in the summons. The application before me does not comply with that provision. That omission is fatal - see C.A No. 211 of 1996 - National Bank of Kenya -v- Ndungu Njau.
Notwithstanding the finding that the omission was fatal, the court of Appeal in the Njau case asked counsel to argue the application. That was “in the broad interest of justice.” I believe the same principle should be applied here.
I have looked at the affidavit. The plaintiff’s application was allowed ex-parte. It was not on merits. The learned counsel for the defendant has explained the reasons for her absence when the matter was called out. They sound convincing and above all, the mistake of counsel should not be visited on the litigant especially where the latter has not contributed to the said mistake.
In the broad interest of justice I allow the application and set aside the order of 12th March, 1998 and all consequential orders therefrom. The application for summary judgment shall be listed for hearing on a date mutually convenient to both counsel. The defendant shall however pay the costs occasioned by this application.
Orders accordingly.
Dated and delivered at Nairobi this 12th day of April, 1998.
A. MBOGHOLI MSAGHA
JUDGE