Kenya Ports Authority v G. Wayumba & 6 others [2019] KEELC 4189 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment was a nullity for want of jurisdiction due to pending suits
No. The sub-judice rule under section 6 applies only to pending suits; this suit had gone to hearing and judgment, so it was not a nullity.
Section 6 of the Civil Procedure Act governs sub-judice but applies only where the later suit is still pending. Here the suit proceeded to hearing and judgment. The applicants' reliance on the two 2001 suits therefore failed; the court noted the applicants would equally have faced a res judicata objection had the suit been dismissed.
Whether service was denied or a good defence shown
No. The applicants did not question service and did not plead a good defence.
The applicants never challenged the mode of service of summons to enter appearance, and the plea in paragraph 16 of the supporting affidavit did not show non-service. Nor did they plead any defence to the claim, so the ordinary grounds for setting aside a regular judgment were not made out.
Whether the court should nonetheless set aside the judgment
Yes, but only to fulfil the rules of natural justice, given pending suits with the same parties and subject matter in which the applicants have filed defences.
Although the applicants failed on their stated grounds, the court exercised its discretion to grant them a hearing because there were pending suits involving the same parties and subject matter, and allowing the applicants to be heard would enable a just determination of the disputes. The setting aside was expressly not based on the motion's grounds.
Legal principles established
#- A judgment in a suit that has proceeded to hearing is not a nullity merely because other suits over the same subject matter are pending; the sub-judice rule under section 6 of the Civil Procedure Act applies only while the suit is still pending
- Setting aside an ex-parte judgment is discretionary and requires demonstration of established principles: no undue delay, no obstruction of justice, non-service, and a good defence
Court orders
#- 1.The judgment dated 24th September 2018 is set aside as it relates to the 6th & 7th defendants' titles Nos MSA/BLOCK CCVI/508 and MSA/BLOCK XXVI/928
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Original jurisdiction under the Civil Procedure Act (section 6 discussed); no constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v G. Wayumba & 6 others [2019] KEELC 4189 (KLR)", Case Analysis (2019). Mombasa ELC (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4189/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.