Automated Summary
Key Facts
The court dismissed two applications: (1) an application to set aside ex parte orders issued on 23/01/2023 and confirmed on 9/02/2023, finding the applicant was served but failed to attend court or demonstrate sufficient cause for non-appearance; (2) an application to cross-examine the CEO of the 1st and 2nd defendants, which the court declined to grant as the prior application was dismissed and a cross-examination would risk a 'mini trial'.
Issues
- The court determined the cost allocation for the two applications, noting that costs would abide the outcome of the main suit as per the final orders.
- The court considered whether the ex parte ruling issued on 23rd January 2023 and confirmed on 9th February 2023 should be set aside, as the applicant claimed they were issued without proper hearing and potentially through fraudulent means.
- The court evaluated if the 1st and 2nd respondents had sufficient grounds to cross-examine the CEO (Rashesh Adhyaru) on his supporting affidavit, weighing against judicial efficiency under Section 1A of the Civil Procedure Act.
Holdings
- The court dismissed the application to set aside ex parte orders dated 09/02/2023, finding the applicant failed to demonstrate sufficient cause for non-attendance at the hearing. The applicant was served with court documents but did not follow up with their advocate or appear in court, leading the court to conclude there was no excusable mistake and the application lacked merit.
- The court declined to permit cross-examination of the CEO, Rashesh Adhyaru, on the supporting affidavit dated 26/04/2023, as there was no basis to warrant the summons after the ex parte orders were upheld. The court emphasized judicial efficiency and avoided a mini-trial within the proceedings.
Remedies
- Costs will abide the outcome of the main suit.
- Similarly, the Application dated 17/05/2023 is equally dismissed.
- The application under determination dated 24/05/2023 has no merit and is dismissed.
Legal Principles
The court emphasized that applications to set aside ex parte orders must demonstrate a defense on merit, sufficient cause for non-attendance, and no undue delay. It held that litigants cannot rely solely on their advocate's failure to act, as the duty to pursue a case lies with the litigant. The court also noted that costs should be awarded to the ex-parte applicant if the application to set aside lacks merit.
Precedent Name
- Savings and Loans Limited v Susan Wanjiru Muritu
- Patel v EA Cargo Handling Services Ltd
- Mohammed & Another v Shoka
- Ongom vs. Owota
- Shah v Mbogo
Cited Statute
- Civil Procedure Rules, Order 51 Rule 1
- Civil Procedure Act, Cap 21 of Laws of Kenya
- Civil Procedure Rules, Order 19 Rule 2
Judge Name
JA Mogeni
Passage Text
- By summoning the deponent to Court for cross examination, the Court may fall in a trap of having a mini trial or trial within a trial. That would not augur well in furtherance of the overriding objective of the Act as provided by Section 1A of the Civil Procedure Act.
- a. The application under determination dated 24/05/2023 has no merit and is dismissed. b. Similarly, the Application dated 17/05/2023 is equally dismissed. c. Costs will abide the outcome of the main suit.
- Consequently, I find that the application dated 26/04/2023 devoid of merit and proceed to dismiss it in its entirety with costs to the ex-parte applicant.