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ELCAllowed· [2018] KEELC 2379 (KLR)

Sarah Chepkemoi Bett v Recho Koech [2018] KEELC 2379 (KLR)

not stated in judgment (delivered at Kericho)
11 July 2018
JOJ.M ONYANGO
1,519 words in judgment
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The bottom line

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A Kericho court set aside a default judgment against a defendant because her draft defence raised real issues, but only on strict payment conditions.

What this practically means

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Executive summary

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The Defendant/Applicant, by notice of motion dated 8th June 2018, sought leave for the firm of J.K Kirui & Co. Advocates to come on record, a stay of execution, setting aside of the ex-parte judgment delivered on 16th March 2018 with all consequential orders, leave to file a defence out of time, and costs in the cause. The Applicant contended she was never served with summons, plaint or hearing notices, was unaware of the hearing date, and that judgment was entered against her unheard, contrary to natural justice. The Plaintiff/Respondent opposed the application through a replying affidavit, attaching affidavits of service showing the Defendant was served with summons to enter appearance and several hearing notices, and alleging that the Defendant's sons harassed the process server. The Respondent further characterised the draft defence as a sham intended to delay the matter. The court framed five issues and applied the established principles from Yamko Yadpaz Industries Ltd v Kalka Flowers, Patel v East Africa Cargo Handling Services Ltd and CMC Holdings Ltd v Nzioki. It accepted that the affidavits of service proved service, which would ordinarily defeat the non-service ground. However, on examining the draft Defence and Counterclaim, the court found it raised triable issues and was not a mere denial. Balancing the Plaintiff's inconvenience, the court allowed the application on terms: leave for the new advocates to come on record, setting aside of the judgment of 16th March 2018 with consequential orders, a stay of execution, leave to file the defence within 30 days, and payment of Kshs. 30,000 as thrown away costs within 30 days, failing which the orders lapse and the judgment takes effect. Costs of the application were awarded to the Defendant.

Key legal issues

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01

Whether the ex-parte judgment should be set aside on the ground of non-service and whether a triable defence exists

Holding

The court found service was proved by affidavits of service, but the draft defence raised triable issues, so the judgment was set aside on terms, including thrown away costs.

Reasoning

The applicant claimed she was never served with summons or hearing notices; proper service would have been a very strong ground for setting aside. The respondent attached affidavits of service showing service of summons and hearing notices. However, examining the draft Defence and Counterclaim, the court disagreed that it was a mere denial and found it raised triable issues meriting determination on the merits. Balancing the plaintiff's inconvenience at having the suit heard, the court imposed thrown away costs of Kshs. 30,000 as a condition, with the set-aside orders lapsing if unpaid.

p. 3

Legal principles established

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  • The discretion to set aside an ex-parte judgment is wide and unfettered but must be exercised judicially to do justice to the parties, and is not designed to assist a party who deliberately sought to obstruct or delay the course of justice.
  • Where a regular judgment has been entered, the court will usually not set it aside unless satisfied that there is a defence on the merits raising a triable issue.
  • In an application to set aside an ex-parte judgment, the court must consider both the reason the applicant failed to attend/file and whether the defendant has a reasonable defence raising triable issues.
  • The court has no discretion to set aside where there has been no proper service.

Court orders

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  1. 1.The firm of J.K Kirui & Co Advocates is granted leave to come on record for the defendant
  2. 2.The judgment entered on 16th March 2018 is set aside together with all consequential orders thereto
  3. 3.A stay of execution is granted
  4. 4.The defendant is granted leave to file his defence within 30 days from the date hereof
  5. 5.The defendant shall pay kshs. 30,000 as thrown away costs to the plaintiff within 30 days, time being of the essence; failing which the orders shall automatically lapse and the judgment entered shall take effect
  6. 6.The costs of the application shall be borne by the defendant

Authorities

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Cases cited (8)

  • Yamko Yadpaz Industries Ltd Vs Kalka Flowers
    2013 KLR
  • Maina Vs Mugiria
  • Shah V Mbogo
    1967 EA 116 at 123
  • Mbogo V Shah
    1967 EA 93
  • Kanji Naran V Velji Ramji
    1954 21 EACA 20
  • Smith V Middleton
    1972 SC 30
  • Patel V East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • CMC Holdings Ltd V Nzioki
    2004 KLR 173
Jurisdiction invoked
Inherent discretion of the court under the civil procedure rules to set aside ex-parte judgments (as framed in the application; no constitutional/statutory provision expressly cited)

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, "Sarah Chepkemoi Bett v Recho Koech [2018] KEELC 2379 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2379/eng@2018-07-11

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