Laxmichand Virchand Gudka v Anderson Isinta Matwetwe [2018] KEELC 1814 (KLR)
The bottom line
#A Kisii court refused to reverse a judgment won in a borrower's absence because he ignored his case for years and had no real defence against the auction's buyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment dated 2nd December 2016 could be set aside on the ground of the defendant's advocate's failure to file a defence
The application fails because the defendant himself did not act with diligence; he was aware of the suit and the chargee's sale, yet took no steps for years; his conduct was too casual to be excusable
The defendant knew the suit had been filed (his advocate entered appearance on 9th September 2014), knew the suit property had been advertised for sale by public auction on 24th September 2012, yet took no steps to follow up on either the sale or his defence. The court applied the settled principles in Patel v E.A. Cargo Handling, Shah v Mbogo and Sebei District Administration, holding that to deny a litigant a hearing should be the last resort, but here the applicant's own inaction, not merely counsel's negligence, disentitled him to the discretion.
Whether the defendant had a reasonable defence on the merits warranting the court's discretion
No reasonable defence is disclosed; the sale to the plaintiff was valid and completed, and any claim for account of the surplus sale proceeds lies against the chargee (Agricultural Finance Corporation) and the auctioneers, not against the plaintiff-purchaser
The defendant admitted defaulting on the AFC loan secured by the suit property. The chargee's power of sale was properly exercised, the auction was completed, and the plaintiff was registered as owner. The unchallenged sale could not be impugned. The plaintiff's obligation under the conditions of sale was only to pay the purchase price of Kshs 1.7 million, which he did. Any claim regarding the surplus (Kshs 1,430,338.70) constitutes a separate cause of action against the chargee and auctioneers, not a defence to the plaintiff's title claim.
What is the correct date of the judgment sought to be set aside
The judgment was delivered on 2nd December 2016; the date 25th November 2016 on the typed copy was a typographical error corrected by the Judge at the time of delivery
The original record showed judgment was reserved on 26th September 2016 for delivery on 2nd December 2016, and was delivered on that date in the absence of the parties. The typed copy bore 25th November 2016 but this was altered and endorsed by the Judge at delivery. The applicant's reliance on 25th November 2016 was therefore misconceived, though this was not the primary ground of the ruling.
Legal principles established
#- The court's discretion to set aside an ex parte judgment is free but must be exercised judiciously to do justice to the parties, considering among other things whether the applicant has a reasonable defence
- The discretion is intended to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who has been deliberately negligent or dilatory
- Where a chargee's power of sale has been regularly exercised and the sale completed, a claim for account of sale proceeds lies against the chargee and auctioneer, not against the purchaser
- A defendant must follow up on the progress of his case with his advocate; failure to do so for years is not excusable inadvertence
Court orders
#- 1.The defendant's application dated 30th November 2017 seeking to set aside the ex parte judgment and to stay execution is dismissed with costs to the plaintiff
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Inherent jurisdiction of the court under Sections 1, 1A, 1B and 3A of the Civil Procedure Act, Cap 21, and Order 9 Rules 7 and 9, Order 22 Rule 25, Order 12 Rules 2 and 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laxmichand Virchand Gudka v Anderson Isinta Matwetwe [2018] KEELC 1814 (KLR)", Case Analysis (2018). Case No 287 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1814/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.