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MagistrateDismissedCivil Case No E233 of 2022· [2024] KEMC 28 (KLR)

Ngángá v Delta Automobile Limited & 2 others (Civil Case E233 of 2022) [2024] KEMC 28 (KLR)

Principal Magistrate's Court at Machakos
2 May 2024
8,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Machakos court refused to overturn a default judgment because the defendant was properly served and simply failed to respond, so auctioneers may still sell the attached vehicles.

What this practically means

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Executive summary

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The 2nd Defendant/Applicant moved the court by Notice of Motion dated 29th February 2024 seeking to set aside the judgment dated 23rd November 2023, re-open the suit for hearing de novo, lift warrants of attachment and sale issued to First Choice Auctioneers, and secure the release of motor vehicles KCB 914M and KCH 885B. The Applicant initially asserted that service of process was never effected, but in a Further Affidavit admitted that the Plaint and Summons were served on a staff member on 22nd July 2022 and forwarded to the insurer, Kenindia Insurance Company. The Plaintiff/Respondent opposed, exhibiting an affidavit of service by process server Gideon Kimatia and arguing the application was an abuse of process aimed at scuttling the fruits of the judgment. The court framed two issues: whether the threshold for setting aside the judgment was met, and costs. It set out an extensive exposition of the law on setting aside ex parte and interlocutory judgments, holding that irregularly entered judgments must be set aside ex debito justitiae, while regular ones fall to the court's discretion, exercised to avoid injustice from inadvertence or excusable mistake but not to aid litigants who deliberately obstruct justice. Finding the Applicant was on notice and had no sufficient cause for non-attendance - its conduct mimicking the insurer's obstruction in Mbogo v Shah - and noting inordinate delay and mala fides, the court declined to exercise its discretion. The application was dismissed with costs to the Respondent on 2nd May 2024.

Key legal issues

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01

Whether the judgment of 23rd November 2023 should be set aside and the suit heard de novo

Holding

The application failed. Service on the Applicant's staff member was admitted and unshaken, so the Applicant was on notice and the judgment was regular; the forwarding of documents to the insurer was not sufficient cause.

Reasoning

The court found the Applicant's initial denial of service contradicted by its own Further Affidavit admitting service on a staff member on 22nd July 2022. The judgment was therefore regular, and setting aside fell within discretion. The Applicant merely forwarded the papers to the insurer and leaned back; this nonchalant attitude mimicked Mbogo v Shah and failed the sufficient-cause test. The court also found inordinate delay, mala fides and non-disclosure, and declined to exercise discretion in the Applicant's favour.

p. 11
02

Costs of the application

Holding

Costs follow the event; the Respondent gets costs.

Reasoning

The court restated that awards of costs and interest are discretionary and that it found no good cause to depart from the general proposition that costs should follow the event. Having dismissed the application, the Respondent was awarded costs.

p. 12

Legal principles established

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  • Where an ex parte judgment is entered irregularly (without proper service), it must be set aside ex debito justitiae and the court is stripped of discretion
  • The test of a regular or irregular ex parte judgment is notice
  • Discretion to set aside a regular ex parte judgment should be exercised to avoid injustice or hardship from inadvertence, accident or excusable mistake, but not to assist a litigant who deliberately obstructs or delays the course of justice
  • Where an applicant was accorded ample opportunity to defend itself but deliberately failed, the justice of the case requires that the case not be re-opened

Court orders

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  1. 1.The Notice of Motion dated 29th February 2024 seeking to set aside the Judgment dated 23rd November 2023, lift the Warrants of Attachment and Sale and release motor vehicles KCB 914M and KCH 885B is dismissed
  2. 2.The Applicant to pay costs of the Application to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (43)

  • Esther Wamaitha Njihia & 2 Others vs. Safaricom Limited
    [2014] eKLR
  • Mbogo & another vs. Shah
    [1968] 1 EA 93
  • Joseph Obiero vs. Stephen Kosgei Kwanbai & 4 others
    [2019] eKLR
  • Winnie Wambui Kibinge & 2 others vs. Match Electricals Limited
    Civil Case No. 222 of 2010
  • Kenya Commercial Bank Ltd vs. Nyantage & another
    [1990] KLR 443
  • Rayat Trading Co. Ltd vs. Bank of Baroda & Tetezi House Ltd
    [2018] eKLR
  • Rahman vs. Rahman
    [1999] LTL 26/11/9
  • Sebei District Administration vs. Gasyal & others
    [1968] EA 300
  • Tree Shade Motor Limited vs. DT Dobie Co. Ltd
    CA No. 38 of 1998
  • Mwalia vs. Kenya Bureau of Standards
    [2001] 1 EA 151
  • Mbogo & another vs. Shah
    [1967] E.A. 116
  • Francis Kipkemoi Ruto vs. Jeremiah Langat, Simon Kipngetich Kitur, Kipkemoi Tele & Charles Tele
    [2004] eKLR
  • Pithon Waweru Maina vs. Thuku Mugiria
    [1983] KLR 78
  • Kenya Ports Authority vs. Kustron (K) Ltd
    C. A. Civil Appeal Number 142 of 1995 (unreported)
  • Jesse Kimani vs. McConnel
    [1966] E.A. 547
  • Jamnadan Sodha vs. Gordhandas Hemraj
    [1952] 7 ULR
  • Fidelity Commercial Bank Limited vs. Owen Amos Ndungu and Another
    H.C.C. Number 241 of 1998
  • Kimani vs. McConnell
    [1966] E.A. 547
  • Patel vs. East Africa Cargo Handling Service
    [1974] EA 75
  • Branco Arabe Espanol vs. Bank of Uganda
    [1999] 2 EA 22
  • Captain Philip Ongom vs. Catherine Nyero Owota
    (Civil Appeal No. 14 of 2001) [2003] UGSC 16
  • The Registered Trustees of the Archdiocese of Dar es Salaam vs. The Chairman Bunju Village Government & Others
    (Civil Appeal No. 482 of 2017) [2019] TZCA 298
  • Daphne Parry vs. Murray Alexander Carson
    [1963] EA 546
  • Parimal vs. Veena
    [2011] 3 SCC 545
  • Baraka Apparel EPZ (K) Ltd vs. Rose Mbula Ojwang T/A Faida 2002 Caterers
    (2007) eKLR
  • Joseph Njuguna Thairu vs. City Council of Nairobi
    (2015) eKLR
  • Sharp vs. Wakefield
    (1891) 64 L.T Rep. 180 Ap. Ca.173
  • Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others
    (2013) eKLR
  • CMC Holdings Ltd vs. James Mumo Nzioka
    (2014) eKLR
  • Shah vs. Mbogo & Anor
    (1967) EA 470
  • Rooke's case
    5 Rep. 99b (1598)
  • Republic vs. Public Procurement Administrative Review Board & 2 others
    (2018) eKLR
  • Christopher Kiprotich vs. Daniel Gathua & 5 others
    (1976) eKLR
  • Jamnadas V Soda v Gordhandas Hemraj
    7 ULR 7
  • Pharmaceutical Products Ltd vs. Development Bank of Kenya & 2 others
    HCC No. 572 of 2003
  • Smith v Middleton
    [1972] SC 30
  • Kennedy Makasembo vs. Kenya Union of Post Primary Education Teachers
    [2017] eKLR
  • Wachari Karani vs. Bildad Wachira
    [2016] eKLR
  • James Kanyiita Nderitu And Another vs. Marios Philotas Ghikas and Another
    [2016] eKLR
  • Re Solomon M'irura Mathiu
    [2012] eKLR
  • Philip Kimutai Langat P/A Kiplangat Maina vs. Job Kibet Maina
    [2007] eKLR
  • Morgan Air Cargo Ltd vs. Everest Enterprises Ltd
    (2014) eKLR
  • Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another
    [2016] eKLR
Jurisdiction invoked
Order 10 rule 11 and Order 12 rule 7 of the Civil Procedure Rules; sections 1A and 1B of the Civil Procedure Act; Article 50(1) of the Constitution of Kenya

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, "Ngángá v Delta Automobile Limited & 2 others (Civil Case E233 of 2022) [2024] KEMC 28 (KLR)", Case Analysis (2024). Civil Case No E233 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/28/eng@2024-05-02

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