[2020] KEHC 6927 (KLR)
The court found that the reasons advanced by the Applicant for non-attendance, including the pending mediation and the absence of counsel on leave, were plausible. There was no opposition from the Plaintiff, and the dispute between the Plaintiff and the 1st Defendant had been settled by consent. The court held that,...
Source-derived case information.
- Citation
- [2020] KEHC 6927 (KLR)
- Parties
- Plaintiff: Yamin Construction Co. Ltd; Defendant: Arthi Highway Developers Limited; Applicant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 22 of 2016
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Proceedings and Allow Defence
- Outcome
- Application allowed; proceedings set aside; 2nd Defendant/Applicant allowed to defend; suit transferred; costs in the cause.
- Judges
- HK Chemitei
- Legal Topics
- Setting Aside Proceedings, Right to Be Heard, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yamin Construction Co. Ltd
Plaintiff
Arthi Highway Developers Limited
Defendant
The Hon. Attorney General
Applicant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Proceedings and Allow Defence
Legal Issues
- 1 Whether the proceedings of 2nd September, 2019 should be set aside to allow the 2nd Respondent/Applicant to defend the suit.
- 2 Whether the application to defer judgment pending the outcome of the application should be granted.
Ratio Decidendi
The court found that the reasons advanced by the Applicant for non-attendance, including the pending mediation and the absence of counsel on leave, were plausible. There was no opposition from the Plaintiff, and the dispute between the Plaintiff and the 1st Defendant had been settled by consent. The court held that, save for the passage of time, there was no significant prejudice to the Respondent. Given the substantial amount of damages claimed and the absence of objection, the court exercised its discretion to set aside the proceedings of 2nd September, 2019 (except the consent between the Plaintiff and the 1st Defendant), allowed the 2nd Defendant/Applicant to defend the suit, and...
Court Disposition
Application allowed; proceedings set aside; 2nd Defendant/Applicant allowed to defend; suit transferred; costs in the cause.
Orders
- The proceedings of 2nd September, 2019 except the consent between the plaintiff and the 1st defendant are hereby set aside.
- The 2nd Defendant/Applicant is hereby allowed to defend the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALITY DIVISION
CIVIL CASE NO. 22 OF 2016
YAMIN CONSTRUCTION CO. LTD........................................PLAINTIFF/RESPONDENT
VERSES
ARTHI HIGHWAY DEVELOPERS
LIMITED.........................................................................1ST DEFENDANT/RESPONDENT
THE HON. ATTORNEY GENERAL...............................2ND RESPONDENT/APPLICANT
RULING
1. When this matter came up for hearing on the 2nd day of September, 2019 there was no appearance by the 2nd Respondent/Applicant. The plaintiff and the 1st Respondent entered into a consent dated 3rd September 2019 in which they settled the issues between them. What was pending between the plaintiff and the applicant was then subjected to hearing. The court then heard the two Plaintiff witnesses and thereafter closed its case. The court then reserved its ruling for 31st October, 2019.
2. The Applicant nevertheless filed the application dated 9th October, 2019 in which it prayed that it be allowed to defend the suit and the pending judgement be deferred awaiting the outcome of this application.
3. The application was not opposed by the Plaintiff and it appears that the issue between it and the 1st Defendant was settled.
4. The court has perused the reasons given by the Applicant as contained in the affidavit of TIMOTHY KIHARA as being plausible. It appears for example that there was a mediation exercise which was not done or not concluded. Secondly the said counsel who was in conduct of this matter was on leave.
5. It is appreciated that the date was taken during the vacation under the service week arrangements and thus not necessarily under the normal cause of the diary.
6. Be it as it may, save for time there is not much prejudice suffered by the Respondent. The issue between it and the 1st Respondent was settled during that period vide the consent. The amount of damages asked by the Plaintiff from the Applicant is colossal and therefore in the absence of any objection it be allowed to defend.
7. For the foregoing reasons the application is allowed as follows.
(A) The proceedings of 2nd September, 2019 except the consent between the plaintiff and the 1st defendant are hereby set aside.
(B) The 2nd Defendant /Applicant is hereby allowed to defend the suit.
(C) This suit is hereby transferred to Nairobi for hearing and disposal as shall be directed by the presiding judge of the division.
(D) Costs of this application shall be in the cause.
Dated, signed and delivered in open court this 16th day of April, 2020.
_______________
H. K. CHEMITEI
JUDGE
16/4/2020