Elizabeth Wavinya Mutie(Suing As The Administrator Of The Estate Of The Late Paul Mutie Makau v Kathekakai Farmers’ Co-Operative Society Limited [2021] eKLR

Key Facts

Deceased Name

Issues

• Whether the Respondent has established a proper basis to warrant the setting aside of the default judgment entered on 9.7.2019.
• Who should meet the costs of the Application
• Whether the instant Application offends the provisions of Order 9 Rule 9 of the Civil Procedure Rules.

Holdings

• The Tribunal determined that the default judgment was regular (as summons was served), but the Respondent's draft Defence raises triable issues, warranting leave to defend. The Claimant is entitled to thrown away costs of Kshs.10,000/ due to the Respondent's unnecessary delay.
• The Respondent's inadvertent failure to enter Appearance or file a Defence was found honest and satisfactory, justifying the setting aside of the judgment. The case is remitted for further proceedings with a mention fixed for 24.5.2021.
• The interlocutory judgment dated 9.7.2019 is set aside as the Tribunal found the draft Defence raises triable issues, particularly regarding the Respondent's inadvertent failure to appear and the jurisdictional challenge. The Respondent is granted 14 days to file a Defence, and the Claimant is ordered to file a Reply to the Response.

Remedies

• b. That the Respondent is granted leave of 14 days to file and serve a Defence, witness statement and list and bundle of documents;
• c. The Claimant to file and serve a Reply to the Response as well as supplementary witness statements and documents (if need be);
• d. Mention to confirm compliance and fixing a hearing date on 24.5.2021.
• a. That the interlocutory judgment dated 9.7.2019 is hereby set aside;
• e. In the meantime, the Respondent is directed to pay the Claimant thrown away cost of Kshs.10,000/= to be paid on or before the hearing date.

Monetary Damages

Legal Principles

• The ruling included an award of thrown away costs (Kshs.10,000) to the Claimant due to the Respondent's unnecessary delay in addressing the application to set aside the judgment. The tribunal found the Respondent's explanation for defaulting satisfactory but imposed costs as a remedy.
• The court applied Order 10 Rule 11 of the Civil Procedure Rules to determine whether a default judgment could be set aside, emphasizing the tribunal's discretion to do justice. It distinguished between regular and irregular judgments, noting that a regular judgment (properly served summons) requires consideration of whether the defense raises triable issues and the interests of justice.

Succession Regime

Precedent Name

• K-Rep Bank Limited vs Segment Distributors Limited
• Fidelity Commercial Bank Limited vs Owen Amos Ndungu & Another
• Patel vs East Africa Cargo Service Limited
• James Kanyiita Nderitu & Another vs Marios Philotas Ghikes & Another

Executor Name

Cited Statute

Executor Appointment

Judge Name

• P. Gichuki
• Jane Mwatsama
• B. Kimemia

Passage Text

• We note that the Respondent has challenged the jurisdiction of the Tribunal to entertain the claim. Jurisdiction is everything and it goes to the root of the claim. We thus find that the same is an issue worth trying at hearing of the main suit. To this end we find that the draft defence raises triable issues.
• The upshot of the foregoing is that we find merit in the Respondent's Application dated 3.9.2019 and hereby allow it as follows: a. That the interlocutory judgment dated 9.7.2019 is hereby set aside; b. That the Respondent is granted leave of 14 days to file and serve a Defence...
• In the case of James Kanyiita Nderitu & Another -vs- Marios Philotas Ghikes & Another [2016]eKLR... the court held thus: 'In a regular default judgment... the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account... whether the intended Defence raises triable issues.'

Beneficiary Classes

• Spouse / Civil Partner
• Child / Issue