[2025] KEHC 9544 (KLR)

[2025] KEHC 9544 (KLR)

The court found that the applicant provided a reasonable explanation for failing to participate in the proceedings, attributing it to lack of service and operational disruptions at the instructing client's office. The court held that the applicant's failure was a mistake of advocate, which should not necessarily bar him from being heard on the merits, especially in the absence of fraud or intention to overreach. The court further determined that the applicant raised a triable issue on quantum, which constitutes a defence on merit. The prejudice to the respondent, being delay in enjoying the fruits of judgment, could be compensated by costs, whereas denying the application would shut the...

Citation
[2025] KEHC 9544 (KLR)
Parties
Appellant: Yusuf Amaunda Wesonga; Respondent: John Waithaka Thuo
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
3 July 2025
Case Number
Civil Appeal E041 of 2024
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Outcome
Application allowed; ex parte judgment set aside; applicant to file submissions within 14 days; respondent awarded thrown away costs.
Judges
A Mabeya
Legal Topics
Setting Aside Ex Parte Judgment, Service of Process, Right to Be Heard, Judicial Discretion
Source Language
English
Civil Procedure Setting Aside Ex Parte Judgment Service of Process Right to Be Heard Judicial Discretion

Case Brief

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Parties

Yusuf Amaunda Wesonga

Appellant

John Waithaka Thuo

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the ex parte judgment entered on 17/12/2024 should be set aside for lack of service and denial of opportunity to be heard.
  2. 2 Whether the applicant provided a reasonable explanation for failure to participate in the proceedings.
  3. 3 Whether the applicant has a defence on merit raising triable issues, particularly on quantum.

Ratio Decidendi

The court found that the applicant provided a reasonable explanation for failing to participate in the proceedings, attributing it to lack of service and operational disruptions at the instructing client's office. The court held that the applicant's failure was a mistake of advocate, which should not necessarily bar him from being heard on the merits, especially in the absence of fraud or intention to overreach. The court further determined that the applicant raised a triable issue on quantum, which constitutes a defence on merit. The prejudice to the respondent, being delay in enjoying the fruits of judgment, could be compensated by costs, whereas denying the application would shut the...

Court Disposition

Application allowed; ex parte judgment set aside; applicant to file submissions within 14 days; respondent awarded thrown away costs.

Orders

  • The judgment entered on 17/12/2024 is set aside.
  • The applicant shall file his submissions within 14 days of this ruling.