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ELCAllowedNot stated in judgment· [2016] KEELC 198 (KLR)

Mount Pleasant Limited v John Kimely Birech [2016] KEELC 198 (KLR)

High Court of Kenya
26 September 2016
LGL. GACHERU
702 words in judgment
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The bottom line

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The High Court of Kenya set aside a default judgment because the defendant had a real defence worth hearing, despite missing the original court dates.

What this practically means

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Executive summary

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The Defendant applied by notice of motion dated 24th February 2014 seeking to set aside an interlocutory judgment entered on 16th January 2014 and for leave to file his defence. Summons had been served by advertisement in the Daily Nation of 16th December 2013; the Defendant deponed that he did not read that paper and only learnt of the judgment on 10th February 2014. The Plaintiff opposed through grounds of opposition dated 9th June 2014, arguing that the judgment was regularly entered after service, that the draft defence disclosed no triable issue, and that no inadvertence or excusable mistake had been shown. The application was canvassed by written submissions. The Court identified Order 10 Rule 11 of the Civil Procedure Rules as the starting point, and distilled the guiding principles: the Court must do justice to the parties; the defence must raise triable issues amounting to a prima facie defence; and the Plaintiff must be compensable in costs for any prejudice. The Court held that the application, filed about one month after judgment and before formal proof, was brought without delay. Comparing the Plaint with the draft defence, the Court found the Defendant denied being the registered owner of the property and had never claimed ownership, raising a triable issue as to whether the right person had been sued. In the exercise of discretion, the Court allowed the application: it set aside the interlocutory judgment, granted the Defendant seven days to file his defence, allowed the Plaintiff fourteen days to file a reply, and awarded costs of the application to the Plaintiff, payable by the Defendant.

Key legal issues

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01

Whether the Defendant's delay in applying to set aside the interlocutory judgment disentitled him to the discretion of the Court

Holding

The application filed about one month after entry of judgment, before formal proof, was brought without delay.

Reasoning

The Defendant learned of the judgment on 10th February 2014 after service by advertisement in the Daily Nation. The application was filed about a month later, and since the suit had not been set down for formal proof, the Court found no delay that would bar the exercise of its discretion under Order 10 Rule 11.

p. 2
02

Whether the draft defence raised a triable issue warranting setting aside the judgment

Holding

The defence denied ownership of the property, raising a triable issue as to whether the right person had been sued.

Reasoning

The Court compared the Plaint's claim with the draft defence and noted the Defendant denied being the registered owner of the property and never claimed ownership. That denial presented a question fit for trial, justifying giving the Defendant an opportunity to be heard.

p. 2

Legal principles established

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  • The Court has discretion under Order 10 Rule 11 to set aside or vary an interlocutory judgment upon such terms as are just, to be exercised judicially.
  • Guiding principles for setting aside interlocutory judgment include doing justice to the parties, presence of triable issues, and compensability of prejudice by costs.

Court orders

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  1. 1.The interlocutory judgment entered on 16th January 2014 against the Defendant is hereby set aside
  2. 2.The Defendant is granted leave to file his defence within 7 days of the date hereof
  3. 3.The Plaintiff is granted corresponding leave to file a reply within 14 days of the date of service
  4. 4.Costs of this application shall be borne by the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mount Pleasant Limited v John Kimely Birech [2016] KEELC 198 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/198/eng@2016-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.