Kelvin Otieno Rapondi v Bagdas Auto Spares Limited [2021] KEELRC 214 (KLR)
The bottom line
#A Kenyan court set aside a judgment won by default because the losing side's lawyers changed their email address without telling anyone, but made those lawyers pay for the mistake.
What this practically means
#Executive summary
#Key legal issues
#Whether service by email to an outdated address and the consequent ex-parte judgment should be set aside
Service on the email on record was proper and the ex-parte judgment was regularly entered, but the judgment was set aside because the defence raised triable issues and Article 50(1) favours a hearing on the merits
The court found the Claimant had served all notices on the email address the Respondent's advocates had provided in their filed documents, so the hearing and judgment were regular. The blame for non-attendance lay with the Respondent's advocates, who changed their email address without notifying the court or the Claimant. Nevertheless, the Respondent's reply to the memorandum disclosed arguable issues that could only be determined at a full hearing, consistent with the constitutional right to a fair hearing, and the application had been filed promptly without delay.
Whether a condition of depositing the decretal sum should be imposed before the suit is reopened
No deposit condition was imposed because the predicament stemmed from the advocate's inadvertence, but throw away costs of Kshs.30,000/= were imposed on the Respondent's advocates
The Claimant, citing alleged dissipation of the Respondent's assets and impending insolvency, sought a conditional deposit of Kshs.570,000/=. The court found no documentary evidence that the Respondent's assets were being transferred to Isuzu East Africa Limited or that it was becoming insolvent, and the Respondent asserted its directors were Kenyan citizens with assets in Kenya. Given that the ex-parte judgment arose from the advocate's inadvertent omission, the court declined the deposit condition but ordered the advocates to pay throw away costs.
Legal principles established
#- Where a defence raises triable issues, an ex-parte judgment, though regularly entered, may be set aside in the interest of a fair hearing under Article 50(1) of the Constitution
- A party who changes their email address of record must take the initiative to inform the court and the opposing party of the new address; failure to do so is negligence attributable to that party's advocates
Court orders
#- 1.Stay of execution of the judgment dated 30th September, 2021 granted pending the hearing and determination of the application
- 2.The ex-parte hearing of 6th August, 2021 and the resultant judgment set aside and the applicant allowed to defend the suit
- 3.Messrs Kerandi Manduku & Company ordered to pay throw away costs of the application amounting to Kshs.30,000/= to the Claimant's advocates; the prayer to deposit the decretal amount, interest and costs not granted
- 4.The case to be set for hearing on priority basis between February and March, 2022 subject to the court's diary
- Jurisdiction invoked
- Article 50(1) of the Constitution of Kenya 2010 (right to a fair hearing); inherent discretion to set aside ex-parte judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Otieno Rapondi v Bagdas Auto Spares Limited [2021] KEELRC 214 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/214/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.