Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd [2016] KECA 402 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that any High Court judge can set aside a default judgment obtained against you, and it did exactly that here.
What this practically means
#Executive summary
#Key legal issues
#Whether a judge of concurrent jurisdiction may entertain an application to set aside an ex-parte judgment entered by a fellow judge
Yes; the jurisdiction under Order 9B Rule 8 may be exercised by a judge other than the one who entered the ex-parte judgment, and doing so does not amount to sitting on appeal over a coordinate judge.
The Court of Appeal had previously held, in the Ngok case, that such an application is permissible and does not amount to sitting in appeal. The learned Judge expressly acknowledged that holding yet declined to follow it without giving discernible reasons. In doing so he failed to follow a binding precedent of this Court and effectively abdicated the jurisdiction donated by the Rules, denying the appellant a recognised mode of relief.
The principles governing the setting aside of ex-parte judgments
The discretion is to be exercised judicially and judiciously on clear principle to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist deliberate obstruction or delay; the court must also consider whether a triable defence exists.
Relying on Shah v Mbogo, as upheld in Mbogo v Shah, the Court restated the settled principles. The learned Judge failed to consider the application on merits, failed to assess whether the appellant's absence was due to excusable mistake or inadvertence, and made no mention of the defence on file, which allegedly raised triable issues including non-existence of a title deed, privity of contract and statutory time bar. That failure was wrong in principle.
Whether the appellate Court should interfere with the High Court's exercise of discretion
Yes; because the Judge turned his back on a litigant who demonstrated excusable mistake and arguably a good defence, his discretion was exercised wrongly in principle, inviting appellate intervention.
An appellate court interferes with discretion where it is exercised on a wrong principle or by overlooking material matters. Citing CMC Holdings Ltd v Nzioki and Patel v E.A. Cargo Handling Services Ltd, the Court found the Judge failed to consider the application on merits and the defence filed, so the discretion was wrongly exercised and had to be set aside.
Legal principles established
#- A judge other than the one who entered an ex-parte judgment may exercise the jurisdiction under Order 9B Rule 8 to set it aside without sitting in appeal over a judge of concurrent jurisdiction.
- The discretion to set aside an ex-parte judgment must be exercised judicially and judiciously on clear principle, to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
- In an application to set aside an ex-parte judgment, the court must consider whether the defendant has a defence raising a triable issue; if so, the defence should be allowed to be ventilated on merit.
- A judge who declines to exercise the setting-aside jurisdiction for an applicant properly before him, diverting the applicant to appeal, abdicates his jurisdiction and errs in principle, inviting appellate interference.
Court orders
#- 1.The orders of the High Court are set aside
- 2.Substituted with an order setting aside the judgment of Koome J. dated 28th September and the resultant decree
- 3.The suit is remitted to the High Court for expeditious hearing on merit
- 4.Each party shall bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 195 of 2004
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal Act / Constitution Article 164); appeal against a ruling dismissing an application under Order 9B Rule 8 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tortoise Investments Ltd & 7 others v Heather Properties Ltd & 3 others (Environment and Land Case 1167 of 2016 & 938 of 2015 & 606 of 2017 (Consolidated)) [2026] KEELC 4227 (KLR)[2026] KEELC 4227 (KLR)9 Jul 2026
- Nduruhu & another v Okeja & another (Environment and Land Case Civil Suit 235 of 2011) [2024] KEELC 6375 (KLR)[2024] KEELC 6375 (KLR)26 Sept 2024
- John Wanguche Were v John Umwebula Kulubi [2020] KEELC 1918 (KLR)[2020] KEELC 1918 (KLR)23 Jun 2020applied
- Douglas Onyango Olak & 2 others v DOO & another [2020] KEELC 3253 (KLR)[2020] KEELC 3253 (KLR)6 Mar 2020applied
- Lavender Sigar (Suing on his own behalf as the legal representative of the Deceased’s estate) and 21 Others v Edwin Omolo Ong’ong’a Sigar (Sued as the legal representative of Wilson Ong’ong’a, the Trustee of the estate of the late James Sigar Omollo) [2020] KEELC 3775 (KLR)[2020] KEELC 3775 (KLR)6 Feb 2020applied
- Ethics and Anti-Corruption Commission v 5th Judgment Debtor (Application to set aside and review ex-parte judgment)[2019] KEHC 2761 (KLR)28 Oct 2019applied
- Dickson Opola Okumu v Tom Odhiambo Odari & another [2019] KEELC 1286 (KLR)[2019] KEELC 1286 (KLR)25 Oct 2019applied
- NIC Bank Limited v John Kisukha Mukakhula t/a Bungoma Teachers Training College [2019] KECA 935 (KLR)[2019] KECA 935 (KLR)22 Feb 2019followed
Cite this brief
#Cite this brief
Caselaw, "Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd [2016] KECA 402 (KLR)", Case Analysis (2016). Civil Appeal No. 291 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/402/eng@2016-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.