East Meat Supplies Limited v Nunow (Civil Appeal E025 of 2023) [2024] KEHC 15813 (KLR) (13 December 2024) (Judgment) Neutral citation: [2024] KEHC 15813 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT VOI CIVIL APPEAL E025 OF 2023 AN ONGERI, J DECEMBER 13, 2024 BETWEEN EAST MEAT SUPPLIES LIMITED ........................................................ APPELLANT AND ABDI MOHAMED NUNOW .............................................................. RESPONDENT (Being an appeal from the Ruling of Hon. A. M. Obura (CM) in Voi CMCC No. E141 of 2022 delivered on 8th June 2023) JUDGMENT 1. The trial court gave a Ruling dated 8th June 2023 in which the Applicant’s application dated 5th April, 2023 was dismissed. 2. The Applicant was seeking to set aside a default judgment entered on 3rd August 2022 against the Applicant due to failure to enter appearance or file a defence. 3. The Applicant appealed on the following grounds:i. The learned Magistrate erred in law and fact by failing to appreciate that the Appellant had a right to a fair hearing. ii. The learned trial Magistrate erred in law and in fact in holding that the Appellant was expected to attach a draft defense in the absence of pleadings. iii. The learned trial Magistrate erred in law and in fact in holding that the letter by Stivellex IT Solutions was not signed and therefore an after thought. iv. The learned trial Magistrate erred in law and in fact in holding that the Appellant never alluded to matters of existence, ownership and use of the emails at the application stage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15813/eng@2024-12-13 1
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v. The learned trial Magistrate erred in law and in fact in holding that the Appellant was given an opportunity to be heard. vi. The learned trial Magistrate erred in law and in fact in holding that the judgment ton record was regular. 4. The parties filed written submissions. The Applicant submitted that he was condemned unheard. 5. The Appellant further submitted that he has a right to a fair hearing under Article 50(1) of the Constitution. It provides 50. Fair hearing (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 6. The Plaintiff/Respondent submitted that the judgment was regular since the Defendant/Applicant was duly served. 7. The sole issue for determination in this Ruling is whether the default judgment ought to have been set aside. 8. I find that the court has a discretion to set aside a default judgment. In Patel v EA Cargo Handling Services Ltd [1974] EA 75 the court stated that: “ There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just… The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules." 9. The trial court ought to have considered whether the draft defence raises trial issues. 10. A triable issue is not one that will succeed but one that deserves a hearing. 11. I find that the right to be heard is a fundamental one. 12. No party ought to be chased from the seat of judgment unheard. 13. I find that the respondent has not established that he will suffer prejudice that cannot be compensated by an award of costs. 14. I set aside the default judgment and direct that the case starts denovo. 15. The applicant to pay the Respondent thrown away costs of Kshs. 20,000 before the suit is set down for hearing. DATED, SIGNED AND DELIVERED THIS 13TH DAY OF DECEMBER 2024 IN OPEN COURT AT VOI. ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Trizah https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/15813/eng@2024-12-13 2
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