Chege v Mwangi & another (Civil Case 414 of 2014) [2023] KEHC 21377 (KLR) (Civ) (4 August 2023) (Ruling)

Key Facts

Issues

• The fourth issue addressed who should bear the costs of the application. The court decided that the defendant is obligated to pay the thrown away costs, which were set at Kshs 30,000.
• The third issue was whether the defendants' defense contained triable issues. The court found that the defense, particularly the issue of contributory negligence, raised triable issues warranting a full trial.
• The second issue concerned the setting aside of the ex parte judgment. The court ruled that the ex parte judgment should be set aside, provided the defendants pay the thrown away costs assessed at Kshs 30,000.
• The first issue was whether the court should grant a stay of execution of the ex parte judgment. The court determined that the stay was unnecessary because no execution had been levied against the judgment.

Holdings

• The plaintiff is permitted to file a response to the defense within 15 days of being served the defense documents.
• The case must be prosecuted (proceed to trial) within 90 days of the ruling date (August 4, 2023).
• The ex-parte judgment dated July 31, 2018 is set aside upon payment of thrown away costs assessed at Kshs 30,000 by the defendants.
• The defendants are granted unconditional leave to defend the suit, with their defense to be filed and served within 15 days of the ruling date (August 4, 2023).
• The court determined that the defendants' defense raises triable issues, particularly contributory negligence, warranting a full trial to adjudicate the matter fairly.

Remedies

• Plaintiff granted 15 days to file any response after service of defense documents
• Defendants directed to file and serve their defense within 15 days from August 4, 2023
• Defendants granted unconditional leave to defend the suit after establishing a triable issue of contributory negligence
• Ex-parte judgment dated July 31, 2018 and default judgment dated November 25, 2015 are set aside upon payment of thrown away costs assessed at Kshs 30,000
• Court orders case to be prosecuted within 90 days from August 4, 2023

Monetary Damages

Legal Principles

• The court emphasized the principle of natural justice, stating that litigants must be given an opportunity to ventilate their case. This was applied to allow the defendants leave to defend despite the default judgment, as the court noted that denying a hearing should be the last resort.
• The court ordered the defendant to pay 'thrown away costs' as a condition for setting aside the ex-parte judgment. This reflects standard costs principles where the applicant bears costs if the application is successful.

Precedent Name

• Tree Shade Motor Limited vs DT Dobie Co Ltd
• Patel v EA Cargo Handling Services Ltd.
• Isaac Awuondo v Surgipharm Limited & Another
• HD Hasmani v Banque Du Congo Belge
• Sebei District Administration v Gasyali & others

Judge Name

Passage Text

• The law is now settled that if the defence raises even one bona fide triable issue, then the Defendant must be given leave to defend.
• i. That exparte judgment be and is hereby set aside upon payment by the defendants of thrown away costs assessed at Kshs 30,000.
• The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court