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MagistrateAllowedCivil Case No E001 of 2022· [2025] KEMC 90 (KLR)
Lempushuna v Mutabari & another (Civil Case E001 of 2022) [2025] KEMC 90 (KLR)
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#What this practically means
#Executive summary
#The defendants/judgment debtors moved the court by Notice of Motion dated 22nd January 2025 seeking stay of execution, setting aside of the judgment and decree, setting aside of the ex parte proceedings of 17th October 2024, and a fresh hearing. They argued that defence counsel had logged into a wrong virtual link and missed the defence hearing, that the defence was genuinely interested in defending the suit, and that a consent on liability in the ratio 85:15 had not been reflected in the judgment. The plaintiff/respondent opposed, contending that a regular judgment followed the defendants' non-attendance despite the hearing date being known, that previous sessions had been attended using the correct link, and that parties were free to appear physically. The sole issue framed was whether a case for setting aside the judgment had been made out. The court found the defence's non-attendance excusable: on a prior date counsel had indicated two defence witnesses would testify, showing genuine intent to defend; the wrong link was a genuine mistake, likely aggravated by link confusion following the presiding magistrate's new deployment to the station. The resulting judgment was one-sided, with the plaintiff's testimony untested by cross-examination, and the 85:15 consent on liability was not reflected in it. The roughly six-week delay in applying, accounting for the December holiday, was not inordinate. The court allowed the application, setting aside the judgment, decree and ex parte proceedings, reopening the case for cross-examination of the plaintiff and the defence case, with costs in the cause and a 30-day right of appeal.
Key legal issues
#01
Whether the defendant's failure to attend the hearing justified setting aside the ex parte judgment
Holding
Yes - the non-attendance was excusable and the delay in applying was not inordinate; the judgment was one-sided and the consent on liability was not reflected in it.
Reasoning
The court found the defence was genuinely interested in defending the suit, having lined up witnesses on a previous date. The use of a wrong virtual link was a genuine mistake, possibly aggravated by confusion over the correct Microsoft Teams link following the magistrate's fresh deployment to the station. Since the plaintiff's testimony was never cross-examined and a consent on liability in the ratio 85:15 was not reflected in the judgment, justice required setting aside the judgment and reopening the case.
p. 4
Legal principles established
#- Where a genuine mistake prevents a party from attending trial, and the judgment is one-sided because evidence was untested by cross-examination, the court should set aside the judgment in the interests of justice.
Court orders
#- 1.The judgement delivered as a result of an ex parte hearing occasioned by the excusable non-attendance of the defence counsel and his clients is set aside
- 2.The resultant decree and orders are set aside
- 3.The case is re-opened for the Plaintiff to be cross-examined on his evidence and thereafter the defence to proceed to give their defence
- 4.The matter to be rescheduled for judgement
- 5.Costs of the application to be in the cause
- 6.Right of appeal is 30 days
- Jurisdiction invoked
- Order 12 rule 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (inherent power)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lempushuna v Mutabari & another (Civil Case E001 of 2022) [2025] KEMC 90 (KLR)", Case Analysis (2025). Civil Case No E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/90/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.