Odenyo v Mwango Clearing Investments Limited (Cause 58 of 2018) [2022] KEELRC 1330 (KLR)
The bottom line
#A Kenyan court dismissed a company's bid to defend a case late because it never asked to set aside the default judgment against it.
What this practically means
#Executive summary
#Key legal issues
#Competency of an application seeking leave to file defence out of time without seeking to set aside the default judgment
The application was incompetent because it did not seek setting aside of the ex parte judgment, making the prayer for leave to file defence out of time superfluous.
The applicant sought stay of execution and leave to file a defence out of time, but never prayed for setting aside the ex parte judgment. Relying on the Court of Appeal in Nairobi City Council v Thabit Enterprises Ltd, the court held that parties are bound by their pleadings and a court cannot grant relief not sought. An order granting leave to defend before the judgment is set aside would be issued in vain, and a court will not issue orders in vain.
Nature of the default judgment - regular or irregular
The default judgment was a regular one because the defendant had appointed an advocate, obtained leave to file a defence, and failed to do so despite proper service.
Applying James Kanyiita Nderitu, an irregular judgment is one entered without service. Here the defendant entered appearance through Ikapel & Co. Advocates, was granted 21 days leave to file a response, never filed a defence, and the ceased-acting application was never prosecuted. Hearing notices for the formal proof were served directly on the respondent on 2nd June 2021. The judgment was therefore regular, and the ex parte judgment correctly recorded service.
Whether the claim for leave to defend was res judicata and the effect of the draft defence
The court agreed with the decision in Kennedy Mokha Ongiri that repeated applications on the same issue amount to frustrating the decree holder; the prayer was superfluous and the applicant's averments misleading given proof of service.
Leave had earlier been granted on 23rd July 2019 to file a response which was never filed. The respondent relied on Kennedy Mokha Ongiri warning against repeated applications that leave a decree holder 'baby-sitting his barren decree'. The court adopted that reasoning, noting the applicant had notice of the formal proof hearing and that the draft defence was a late, knee-jerk response to execution.
Legal principles established
#- A court cannot grant orders not sought in the pleadings or application; parties are bound by their pleadings and courts cannot grant orders not sought.
- Leave to file a defence out of time cannot be granted before the ex parte judgment is set aside; a court will not issue orders in vain.
- Counsel cannot adduce evidence in submissions.
Court orders
#- 1.The Notice of Motion dated 12th April, 2022 is dismissed with costs to the Respondent.
- 2.On the post-ruling request for release of the deposit: 'The Decree Holder to make a formal application.'
- Jurisdiction invoked
- Sections 1A, 1B and 63(c) and (e) of the Civil Procedure Act and Order 32 rule 6 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odenyo v Mwango Clearing Investments Limited (Cause 58 of 2018) [2022] KEELRC 1330 (KLR)", Case Analysis (2022). Cause No 58 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1330/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.