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Jacob Kipchumba v (sued on behalf of the legal representatives of the estate of the late ... ) — set-aside of ex parte judgment in road-accident damages suit

High Court of Kenya
2 August 2015
945 words in judgment
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The bottom line

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If you were not properly notified of a court hearing, the judgment entered against you can be set aside.

What this practically means

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Executive summary

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This is a High Court at Mombasa ruling by Mary Kasango J on a notice of motion dated 26th January 2014 filed by Jacob Kipchumba, the 1st defendant, seeking to set aside an ex parte judgment entered against him in a road-accident damages suit arising from a collision on 4th January 2003 between the 1st plaintiff's vehicle and motor vehicle KAP 187F. The plaintiffs claimed general and special damages, initially against the 1st defendant alone as owner, later amending to plead that he was the beneficial owner while the 2nd defendant was the registered owner. Interlocutory judgment was entered against the 2nd defendant in default; the suit against the 1st defendant proceeded to formal proof hearing on 26th May 2010, further hearings on 17th June and 1st July 2010, submissions on 20th September 2010, and judgment was delivered. The 1st defendant argued his then advocate, Yano & Company, was not informed of the hearing dates; the plaintiffs contended the advocate was served and any remedy lay in suing him for negligence. Applying Order 10 Rule 11 and the authorities of Patel v EA Cargo Handling Services, Shah v Mbogo and Baraka Apparel EPZ, the court found no affidavit of service proving the advocate received a hearing notice for 26th May 2010 or for the submissions date of 20th September 2010. Holding the judgment irregular, the court set it aside ex debito justitiae, allowing the 1st defendant to agitate his defence, and awarded him costs of the motion.

Key legal issues

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01

Discretion to set aside ex parte judgment under Order 10 Rule 11

Holding

The court enjoys a wide discretion, but where service of a hearing notice is not proved for the date of hearing, the judgment is irregular and is set aside ex debito justitiae.

Reasoning

The court reviewed Order 10 Rule 11 and prior decisions (Patel v EA Cargo Handling; Shah v Mbogo; Baraka Apparel) showing the discretion exists to do justice and avoid injustice from inadvertence. It then found no affidavit of service proving the 1st defendant's advocate received a hearing notice for 26th May 2010, and none for the submissions date of 20th September 2010, denying the defendant a hearing on those dates.

p. 2
02

Effect of service on some dates but not others

Holding

Lack of service for some of the dates when the case was before court justified setting aside the ex parte judgment so the defence could be heard on merit.

Reasoning

The court distinguished dates on which the advocate was served (17th June and 1st July 2010) from those on which no hearing notice was served (26th May 2010 and 20th September 2010). Because service was lacking for some dates, the discretion was exercised in favour of setting aside, enabling the 1st defendant to agitate his defence.

p. 3

Legal principles established

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  • Where a party was not served with a hearing notice, an ex parte judgment obtained is irregular and must be set aside as a matter of right.

Court orders

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  1. 1.The ex parte judgment against the 1st defendant dated 10th August 2012 and delivered on 18th October 2012 is set aside
  2. 2.The 1st defendant is awarded costs of the Notice of Motion dated 26th January 2014
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (inherent discretion to set aside ex parte judgment)

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, "Jacob Kipchumba v (sued on behalf of the legal representatives of the estate of the late ... ) — set-aside of ex parte judgment in road-accident damages suit", Case Analysis (2015). Not stated in the judgment text provided. Source: 

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