Francis Inwani Malwenyi & another v Henry Karanja Ngugi & 5 others [2018] KEELC 1323 (KLR)
The bottom line
#Kenya's High Court lifted an auctioneers' attachment of goods a third party proved he owned, and let two defaulting defendants defend the case on strict conditions.
What this practically means
#Executive summary
#Key legal issues
#Attachment of third party's goods in execution
The objector proved ownership of the motor vehicle and household goods attached and their attachment is discharged
On a balance of probabilities the objector established that Motor Vehicle KBD 599D, a Sony Hi-Fi system, coffee table, dining table and 7-seater sofa set attached by Moran Auctioneers belonged to him and not to the 3rd defendant/judgment debtor, and should therefore not have been attached.
Whether the 3rd defendant was served and whether the judgment should be set aside
The 3rd defendant was served and appointed the firm of Kinyanjui & Njau Advocates; her forgery allegation was unsubstantiated; judgment set aside only conditionally
The court found the 3rd defendant's signature on the witness statement resembled her signature on her supporting affidavit, no forgery complaint was lodged with the Police or Law Society of Kenya, and her intended defence mirrored the pleadings filed by the firm. The court inferred she disowned the firm only because it failed to attend the hearing.
Whether the 4th defendant was served and has a defence
Service on the 4th defendant proved by unchallenged affidavit of service; she is given conditional leave to defend
An affidavit of service sworn by Mark Okinda showed she was served at her workplace at the T.S.C Centre; she did not challenge it, did not deny working there, and made no request to cross-examine the process server. Her involvement in the underlying transaction was unclear, so she was allowed to defend subject to thrown away costs.
Legal principles established
#- The court's discretion to set aside ex parte judgment is wide and unfettered, exercised to do justice to the parties
- The discretion to set aside ex parte judgment is meant to avoid injustice, not to assist a party who deliberately obstructed or delayed justice
Court orders
#- 1.The Objector's Notice of Motion dated 26/7/2017 is allowed in terms of prayer 3 thereof
- 2.The 3rd defendant's Notice of Motion application dated 24/7/2017 is allowed in terms of prayer 4 thereof
- 3.The 3rd Defendant is at liberty to defend the suit on the basis of her pleadings on record
- 4.The 3rd defendant shall pay to the plaintiffs thrown away costs assessed at Kshs.20,000/= payable within thirty (30) days from the date hereof in default of which the plaintiffs shall be at liberty to apply for execution for the recovery thereof
- 5.The 4th defendant's Notice of Motion application dated 17th August, 2017 is allowed in terms of prayer 4 thereof
- 6.The 4th defendant is granted leave to file a defence within 21 days from the date hereof
- 7.The 4th defendant shall pay to the plaintiffs Kshs.20,000/= as thrown away costs within 30 days from the date hereof failure to which the plaintiff shall be at liberty to apply for execution for the recovery thereof
- 8.Each party shall bear its own costs of the three (3) applications
- 9.The judgment delivered on 20th May, 2015 shall remain in force as against the other defendants
- Jurisdiction invoked
- Inherent power and discretion under the civil procedure rules to set aside ex parte judgments and attachment in execution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Inwani Malwenyi & another v Henry Karanja Ngugi & 5 others [2018] KEELC 1323 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1323/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.