[2008] KEHC 3094 (KLR)
The court found that the appellant, who had taken the hearing date, was aware of the date and failed to attend court without justification. There was no irregularity or injustice in proceeding in his absence, especially as the plaintiff was present and no issue of lack of service of hearing notice arose. The trial...
Source-derived case information.
- Citation
- [2008] KEHC 3094 (KLR)
- Parties
- Appellant: Wilson Muriithi Kuruta; Respondent: Esther Kabui Kuruta; Respondent: Jemmimah Wambui Kuruta
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Exparte Judgment, Setting Aside Judgment, Review of Orders, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Muriithi Kuruta
Appellant
Esther Kabui Kuruta
Respondent
Jemmimah Wambui Kuruta
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in refusing to set aside the ex parte judgment against the appellant.
- 2 Whether the appellant was denied justice by the proceedings conducted in his absence.
- 3 Whether the defence raised any triable issues warranting review or setting aside of the judgment.
Ratio Decidendi
The court found that the appellant, who had taken the hearing date, was aware of the date and failed to attend court without justification. There was no irregularity or injustice in proceeding in his absence, especially as the plaintiff was present and no issue of lack of service of hearing notice arose. The trial magistrate correctly found that the defence raised no triable issues and that the application to set aside the judgment was an attempt to undermine a clear court order. The authorities cited support the principle that the discretion to set aside ex parte judgments is not to be exercised in favour of parties who deliberately fail to attend court or seek to delay justice....
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 36 of 2006
WILSON MURIITHI KURUTA………......……………….APPELLANT
VERSUS
ESTHER KABUI KURUTA………………………..1ST RESPONDENT
JEMMIMAH WAMBUI KURUTA……….…………2ND RESPONDENT
JUDGMENT
This appeal arises out of ruling by Trial Magistrate made on 18/5/2006 in RMCC No. 67 of 2004. The Appellant has set out 8 grounds of appeal. The suit relates to rice holding No. 2061 Thiba Section. The Trial Magistrate entered Judgment against the Appellants on 15/3/2005 and thereafter the Appellants filed an application dated 14/4/2005 seeking to review and set aside that Judgment and it is the ruling on that application which was delivered on 18/5/2006 that is subject of this appeal. The trial Magistrate found that the provision of Civil Procedure Rules invoked Order IX Rule 8 was non existent. The Trial Magistrate made a finding that since it was the defendant who had taken the hearing date exparte and no notice was given to the plaintiffs there was no irregularity in proceeding in absence of the defendant but in presence of Plaintiff who had come to know of the hearing date. The provisions of Order IX B is applicable in case where on the day fixed for hearing only plaintiff attends. If the court is satisfied that hearing notice has been duly served, it may proceed exparte. In this case there was no issue of hearing notice not having been served. The party absent is the one who had taken the hearing date. He knew the date of hearing. He should have been in court on that date. There was no irregularity or injustice done to the defendant The Trial Magistrate also made a finding that the defence had raised no triable issues. The Defendant was attempting to make nonsense of a clearly unambiguous order of the court. The authorities relied on which were offered to the court are:-
1. Shah -Vs Mbogo & another 1967 EA 116. It was held that the principle that the court’s discretion to set aside an exparte Judgment is intended to be exercised to avoid injustice or hardship resulting from accident inadvertence or excusable error but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.
In the present case there are no circumstances which warrant a Judgment to be set aside. The Appellant just failed to turn up when he should have done so. In the court of Appeal decision in the appeal of Magunga General Stores - Vs – Pepco Distributors Ltd (1987) 2 KLR 89 holding (2) a mere denial is not sufficient defence, a defendant has to show either by affidavit, oral evidence, or otherwise that there is good defence. This decision was relating to Order 35 CPC on application for summary Judgment. The principle should be the same where the issue of defence is raised. In the case of Ruaha Concrete Co. Ltd and Jafin Patel where hearing notice was received late occasioning hearing exparte, it was held that defence had not shown triable issues. The Trial Magistrate correctly looked at the defence and found it without merit.
Upon considering all the above, I find that the Trial Magistrate was correct in his ruling. The appeal is therefore dismissed with costs.
Dated this 16th January, 2008.
J. N. KHAMINWA
JUDGE
16/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kahiga for Respondent.
Read in open court.
J.N. KHAMINWA
JUDGE