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ELCDismissed· [2021] KEELC 549 (KLR)

Ratilal Ghela Shah & 2 others v Chairperson Mvita Constituency Development Fund Committee & 2 others [2021] KEELC 549 (KLR)

Environment and Land Court (implied by judgment subject matter); the judgment itself does not name the court
7 December 2021
NMN.A. Matheka
1,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to undo a default judgment because the defendants were properly served, delayed for years, and had no real defence.

What this practically means

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Executive summary

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The 1st and 2nd Defendants applied by notice of motion dated 9th August 2021, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, for stay of execution and setting aside of the judgment and decree of 27th May 2021, and for leave to enter appearance and file defence out of time. They attributed their failure to defend to miscommunication with the 3rd Defendant, whom they claimed they relied on for legal advice, and to a change in management, asserting that they had a defence raising triable issues and that execution would lead to demolition of the Doctor's quarters for Mvita Clinic. The Plaintiffs opposed, asserting due service of summons, pleadings and orders which the defendants acknowledged; that interlocutory judgment was entered in default on 27th January 2017 and, after formal proof at which the Plaintiffs and 3rd Defendant testified, final judgment was delivered on 27th May 2021; and that the draft defence was a sham raising no triable issues. The court applied the established principles in Patel v EA Cargo Handling, Shah v Mbogo, Ree Shade Motors and James Kanyiita Nderitu on setting aside regular versus irregular default judgments. It found proper service, acknowledged by the defendants' stamping and signing documents on 18th April 2016, held the applicants indolent in moving only when execution loomed, rejected the miscommunication excuse, and found no triable issues in the draft defence. The application was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the default judgment was regular or irregular

Holding

The judgment was regular because the applicants were duly served with summons, pleadings and orders, which they acknowledged by stamping and signing on 18th April 2016

Reasoning

The court found service was proper: the defendants acknowledged documents by stamping and signing them on 18th April 2016, and the 3rd defendant entered appearance on 14th April 2016. A regular default judgment can only be set aside in the court's discretion, considering reasons for default, delay, triable issues, prejudice and the interest of justice - none of which favoured the applicants.

p. 3
02

Whether the applicants' explanation of miscommunication justified setting aside the judgment

Holding

The explanation of miscommunication with the 3rd defendant and change of management was rejected as an excuse for indolence

Reasoning

The applicants only moved the court when the decree was up for execution, long after judgment. The court held that parties must not be indolent in prosecuting their cases and found the applicants' excuse unconvincing, adopting the principle that the discretion to set aside exists to remedy accident or excusable mistake, not to assist deliberate inaction.

p. 3
03

Whether the draft defence raised triable issues

Holding

The draft defence raised no triable issues and the application could not be sustained on that basis

Reasoning

Applying the principle that a regular judgment may be set aside only where a defence on the merits raises a triable issue, the court found the draft defence baseless. The respondents had also urged that the draft defence was a sham and raised no triable issues, and the court agreed that no reasonable defence was disclosed.

p. 3

Legal principles established

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  • The court's power to set aside a default judgment is discretionary and its main concern is to do justice to the parties
  • A regularly entered default judgment will not be set aside unless the defendant shows a defence raising a triable issue and offers a reasonable explanation for the default

Court orders

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  1. 1.The application dated 9th August 2021 is dismissed with costs to the plaintiffs/respondents

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A
  • Civil Procedure RulesOrder 10 Rule 11; Order 51 Rule 1

Cases cited (6)

  • Patel vs E.A. Cargo Handling Services Ltd
    (1974) EA 75
  • Shah vs Mbogo
    (1967) EA 166
  • Ree Shade Motors Ltd vs D.T. Dobie & Another
    (1995-1998) IEA 324
  • James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another
    Civil Appeal No. 6 of 2015 eKLR (Msa)
  • Chemwolo & Another v. Kubende
    [1986] KLR 492 (as printed)
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173 (as printed)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 10 Rule 11 and Order 51 Rule 1 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, "Ratilal Ghela Shah & 2 others v Chairperson Mvita Constituency Development Fund Committee & 2 others [2021] KEELC 549 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/549/eng@2021-12-07

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