John Awour Abila v Joanes Ojwang [2019] KEELC 1852 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment because the man was properly served and his draft defence contained only bare denials.
What this practically means
#Executive summary
#Key legal issues
#Service of summons on the appellant
The appellant was duly served with summons to enter appearance as proved by affidavit of service, in accordance with Order 10 Rule 2 of the Civil Procedure Rules, 2010
The court found that a licensed process server, Vitalis Onyango Akuku, swore an affidavit of service dated 14th October 2015 demonstrating service on 24th September 2015. Notice of entry of judgment dated 16th October 2015 was also issued and clearly addressed to the appellant. Service being regular, the ex-parte proceedings were properly founded.
Whether the draft defence disclosed triable issues
The draft defence consisted of mere denials and did not raise triable issues warranting setting aside the ex-parte judgment
The court examined paragraphs 1 to 9 of the draft defence and found mere denial of the respondent's claim. It endorsed the trial magistrate's reasoning that a court considering an application to set aside default judgment must examine the draft defence for triable issues, and found none. Additionally, the ex-parte judgment and decree had long been executed.
Interference with the trial court's discretion
The trial court properly exercised its discretion in dismissing the application to set aside the ex-parte judgment, and the appellate court would not interfere
The court held that setting aside an ex-parte judgment is discretionary, that a suit existed before the trial court for formal proof and was set down accordingly, and that the discretion was exercised for the purpose of upholding the law. Applying the principle against interference with findings based on evidence and correct legal principles, the court declined to disturb the ruling.
Legal principles established
#- A first appellate court is entitled to reconsider the evidence on record afresh and come to its own conclusions and inferences
- An appellate court will not ordinarily interfere with a trial court's findings of fact unless they are based on no evidence, a misapprehension of evidence, or wrong principles
- The burden is always on the plaintiff to prove his case on a balance of probability even where the case is heard by way of formal proof
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Migori Chief Magistrate's Court
- Civil Suit No. 2074 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's ruling, sitting in Migori (appeal transferred from the High Court following Republic v Karisa Chengo)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Awour Abila v Joanes Ojwang [2019] KEELC 1852 (KLR)", Case Analysis (2019). Appeal from Migori Chief Magistrate's Court Civil Suit No. 2074 of 2015 (appellate file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1852/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.