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ELCAllowedNot stated in the judgment· [2018] KEELC 3217 (KLR)

Ali Mwaduna v Masha Mukadha [2018] KEELC 3217 (KLR)

High Court of Kenya
25 May 2018
JOJ.O. Olola
720 words in judgment
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The bottom line

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The High Court in Malindi reopened a judgment entered without a full hearing, allowing a disabled defendant to finally present his defence.

What this practically means

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Executive summary

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By an application dated 26th March 2015, the defendant Masha Mkadha sought stay of ex parte proceedings of 11th September 2014 and all consequential orders, leave to file his defence and counterclaim out of time, and re-opening of the case to allow him to cross-examine the plaintiff. He argued he was never served with summons, that the plaintiff misled the court on service, that he had an arguable defence, that execution was underway, and that the suit property was his only home as an old and disabled person. The plaintiff Ali Mwaduna opposed, asserting proper service accepted by the court before ex parte proceedings, and that the decree had been executed leaving nothing to stay. The court considered Order 10 Rule 11 of the Civil Procedure Rules and the classic authorities of Patel v EA Cargo Handling Services Ltd and Shah v Mbogo on the wide discretion to set aside ex parte judgments. Finding a possibility that the defendant was not served or, given his condition, did not comprehend the documents served, and noting that the draft defence raised triable issues, the court held that justice required re-opening the proceedings and giving the defendant a hearing. It allowed the application in terms of prayers 3, 4 and 5, directed the defendant to file his defence within 14 days, and awarded the plaintiff Kshs 30,000/- as thrown away costs in respect of the partial execution of the decree. Judgment delivered at Malindi on 25th May 2018 by J.O. Olola, Judge.

Key legal issues

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01

Setting aside or varying an ex parte judgment and consequential decree under Order 10 Rule 11

Holding

The court found a possibility that the defendant was not served, or did not comprehend the documents given his condition, and that the draft defence raised triable issues; the ex parte proceedings were therefore re-opened in the interest of justice.

Reasoning

The court applied the wide discretion under Order 10 Rule 11, guided by Patel and Shah v Mbogo. Noting the plaintiff's affidavit of service but also the defendant's age, blindness and disability, it found a real possibility of non-service or lack of comprehension. The draft defence raised triable issues, so justice required re-opening the proceedings and giving the defendant a hearing.

p. 2

Legal principles established

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  • The discretion to set aside or vary an ex parte judgment is wide and is to be exercised on such terms as are just, the main concern being to do justice to the parties.
  • The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructed or delayed the cause of justice.

Court orders

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  1. 1.Allowed the application in terms of Prayers 3, 4 and 5 (stay of ex parte proceedings and consequential orders; leave to file defence and counterclaim out of time; re-opening of the case for cross-examination and the defence case)
  2. 2.Defendant to file his Defence within 14 days
  3. 3.Defendant condemned to pay Kshs 30,000/- as thrown away costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (2)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
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, "Ali Mwaduna v Masha Mukadha [2018] KEELC 3217 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3217/eng@2018-05-25

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