Automated Summary
Key Facts
The Defendant/Applicant Wilfred Onsomu sought to set aside an ex parte judgment dated 13th March 2020, arguing he was never served with summons due to being away for medical treatment in Nairobi and that his legal representatives failed to file a defense. The Plaintiff/Respondent Esther Osoro contended the application was an abuse of court process, citing the Applicant's awareness of the judgment through his advocates and lack of evidence for his claims. The court denied the application, finding insufficient grounds to set aside the judgment or stay execution, emphasizing the Applicant's duty to exercise vigilance in his legal matters.
Issues
- Whether the Applicant is entitled to setting aside the ex parte judgment dated 13th March 2020
- Whether there should be a stay of execution and all consequential orders
Holdings
- The court found that the Applicant's reasons for seeking to set aside the ex parte judgment dated 13th March 2020 were insufficient. The Applicant was aware of the suit and his advocates participated in proceedings, but he failed to exercise vigilance or provide evidence of medical absence.
- The court dismissed the Applicant's request to stay execution and consequential orders, determining there was no prejudice caused by the change of advocates after judgment. The non-compliance with procedural rules was deemed a technicality without substantive injustice.
Remedies
The court ruled that the Applicant's application to set aside the ex parte judgment dated 13th March 2020 and stay execution was without merit. It dismissed the application with costs awarded to the Respondent, finding the Applicant's reasons insufficient and no prejudice caused by the change of advocates. The judgment entered in favor of the Plaintiff remains valid.
Legal Principles
The court applied the principle of the Rule of Law, emphasizing that procedural compliance is essential to avoid injustice or hardship. It highlighted that ex parte judgments can be set aside only under circumstances of accident, inadvertence, or excusable mistake, not for deliberate obstruction of justice. The analysis also referenced Order 9 Rule 9 of the Civil Procedure Rules, which governs changes of advocates after judgment to protect advocates from clients who might replace them post-judgment to avoid paying fees.
Precedent Name
- Mombasa Highway Transport Limited v Gulf Africa Bank Limited
- Mbogo v. Shah
- Ngitimbe Hudson Nyanumba
- S. K. Tarwadi v Veronica Muehlmann
Cited Statute
- Environment and Land Court Act
- Civil Procedure Act
- Civil Procedure Rules, 2010
- Constitution of Kenya
Judge Name
J.M. Onyango
Passage Text
- The court is enjoined under Sections 1A and 1B of the Civil Procedure Act... to disregard the strict rules of procedure in order to do substantive justice.
- The object of the court's discretion to set aside an ex parte judgment is to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but it is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
- It is apparent to me that there is no prejudice suffered by the Applicant at all by reason of such change of advocate.