Joan Sabastian Mbaya & another v Samuel Koskei Too [2019] KEELC 1531 (KLR)
The bottom line
#A Nairobi court set aside a default judgment entered against a land buyer whose lawyer failed to file a defence, letting him finally contest the case at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the failure to file a defence was attributable to the defendant and whether the application was brought in good time
The defendant was represented by counsel who neglected to file a defence; it was unclear whether counsel updated the defendant; the application, made after judgment of 22 October 2018, was brought without undue delay and deserved exercise of the court's discretion.
The court accepted that the defendant had instructed his former counsel to enter appearance and file a defence but the counsel failed to do so. It noted it could not establish whether counsel updated the client on the proceedings. Since judgment had been delivered only on 22 October 2018 and the application followed soon thereafter, it was brought in good time, justifying the exercise of discretion in the defendant's favour.
Whether the draft defence and counterclaim raises triable issues
The draft defence and counterclaim and/or set off raises triable issues that ought to go to full trial, including the defendant's claim to have paid Kshs.11,500,000.
The court perused the draft defence and found the claim of payments totalling Kshs.11,500,000 to be an issue that could not be wished away. The respondents alleged the defendant's bank deposit annexures were fictitious or forged, itself a factual dispute resolvable only at trial. The parties did not dispute negotiations for purchase of the suit property and part payment, reinforcing that triable issues existed.
Legal principles established
#- The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error.
Court orders
#- 1.The ex parte judgment dated 17th October 2018, and all subsequent proceedings, orders, decree, be and is hereby reviewed and/or set aside
- 2.The defendant/applicant is granted leave to file his statement of defence, counterclaim and/or set off within 21 days from the date of the ruling, in default the exparte judgment shall take effect
- 3.The defendant/applicant to pay the plaintiffs/respondents throw away costs of Kshs.20,000 within thirty (30) days
- 4.The plaintiffs/respondents shall have costs of the application
- Jurisdiction invoked
- Inherent powers of the court; Order 40 rule 2(1), Order 45 rule 1(a), Order 22 rule 22, Order 51 rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 1C, 63(e) and 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joan Sabastian Mbaya & another v Samuel Koskei Too [2019] KEELC 1531 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1531/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.