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High CourtAllowedNot stated in the judgment text provided

Naivas Limited (formerly Naiva Ltd) v Tuskys Supermarkets Limited (in receivership) — Setting Aside of Decree Application

High Court of Kenya
17 April 2020
FTF. Tuiyott
923 words in judgment
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The bottom line

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If a court judgment is based on inaccurate facts, you can successfully apply to have it set aside.

What this practically means

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Executive summary

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The High Court (F. Tuiyott J) ruled on the Defendant's Notice of Motion seeking to set aside a judgment and decree entered against it in a lease dispute over 200 refrigerators. The decree, issued after judgment entered on the Plaintiff's request, comprised rental arrears of Kshs.5,157,533.91 with interest at 24% p.a., Kshs.2,077,910.28 being 100% of remaining lease fees, Kshs.103,895.51 early break costs, an order to return the 200 refrigerators or reimbursement of Kshs.13,774,101, interest at court rate, and costs. The court articulated the governing principle: an irregularly entered ex parte judgment must be set aside as of right, while a regularly entered one is set aside in discretion, considering whether the proposed defence raises triable issues. The record showed the Defendant was served on 17th October 2018, entered appearance, and served the Memorandum of Appearance on the Plaintiff's counsel on 30th October 2018, yet the Plaintiff's request for judgment asserted the Defendant had failed to enter appearance. Although the court could not find intent to mislead, it exercised discretion in the Defendant's favour to strike a blow for accuracy in ex parte representations. Additionally, the Plaintiff's counsel conceded that items 2, 3 and 4 of the decree were unliquidated sums that should not have been granted without formal proof. The court allowed the application with costs to the Defendant, setting aside the judgment. The ruling was delivered virtually under COVID-19 directions, with parties waiving Order 21 Rule 1, guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Regularity of the ex parte judgment

Holding

The judgment was set aside because the Plaintiff's request for judgment misrepresented that the Defendant had failed to enter appearance when appearance had been entered and served.

Reasoning

The Defendant was served with summons on 17th October 2018, entered appearance about thirteen days later, and served the Memorandum of Appearance on the Plaintiff's counsel on 30th October 2018. The Plaintiff nonetheless stated in its request for judgment that the Defendant had failed to enter appearance and file a defence. Though no intent to mislead was found, the misrepresentation justified setting aside the judgment in the interests of accuracy in ex parte applications.

p. 2
02

Concession on unliquidated sums

Holding

The Plaintiff conceded that items 2, 3 and 4 of the decree (unliquidated sums) should not have been granted without formal proof.

Reasoning

Plaintiff's counsel conceded willingness to have judgment set aside in respect of items (b), (c) and (d) of the Decree, being unliquidated sums. The court accepted the concession as well taken, since such prayers require formal proof. This provided a second, independent ground for setting aside the judgment.

p. 2

Legal principles established

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  • An irregularly entered ex parte judgment must be set aside as of right; a regularly entered one is set aside in the court's discretion, considering whether the proposed defence raises triable issues.
  • A party moving the court, particularly ex parte, must make accurate representations to the court; inaccuracy may justify setting aside judgment obtained.

Court orders

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  1. 1.Judgment entered on 5th December 2018 set aside
  2. 2.Application allowed with costs to the Defendant
Jurisdiction invoked
Inherent discretion to set aside ex parte/interlocutory judgment under the Civil Procedure Act and Rules; Article 159(2)(d) and Article 48 of the Constitution invoked for virtual delivery

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, "Naivas Limited (formerly Naiva Ltd) v Tuskys Supermarkets Limited (in receivership) — Setting Aside of Decree Application", Case Analysis (2020). 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.