Joseph Masinde Busuru v Playton Leonard Wekesa & another [2017] KEELC 2867 (KLR)
The bottom line
#The High Court refused to undo a judgment won in the defendant's absence because neither he nor his lawyer could credibly explain missing the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment should be set aside under Order 10 Rule 11
The application lacked merit; the applicant and his counsel were served with a hearing notice but did not attend the hearing, and no credible explanation for absence was offered.
The coram showed the case began at 3.30 p.m. on 23/9/2015 and three witnesses gave evidence. The applicant alleged he waited in court until 4 p.m., which the court found impossible to believe. His counsel's absence was likewise unexplained. Service of the hearing notice dated 16/5/2015 on the defendants' advocates on 18/5/2015 was established, satisfying the requirements for proceeding ex parte.
Whether a parallel suit (PM CC No. 27/2010) affects the applicant's position
The applicant had earlier filed a pending claim at the Webuye Magistrates' Court for a refund of the purchase price, and that is the proper forum for him to pursue his claim.
The respondent demonstrated, by annexing the plaint, that the applicant had filed a suit on 9/2/2010 against Lawrence Simiyu Nandasaba, Judith Wafula Simiyu and Meshack Nandasaba claiming a refund of the purchase price of one acre out of Ndivisi/Ndivisi/1725. That suit was pending when this case was heard, predating the present suit, and no denial of its existence was made.
Legal principles established
#- A party seeking to set aside a judgment taken in default must give a credible explanation for non-attendance, and a hearing notice duly served on the party's advocates suffices.
Court orders
#- 1.The application for setting aside the judgment is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Order 10 Rule 11 and Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Masinde Busuru v Playton Leonard Wekesa & another [2017] KEELC 2867 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2867/eng@2017-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.