Josphat Njoroge Thaara v Peter Njoga [2011] KECA 89 (KLR)

Facts

The appellant and respondent entered into an agreement to sell 0.85 of an acre of land for Kshs.42,500/=, with Kshs.5,000/= paid upfront and the balance to be paid against a loan secured by the appellant from the Standard Bank. The respondent filed a suit in the High Court to claim the land, but the appellant did not transfer the land as agreed. The High Court awarded the respondent the land, and the judgment was executed.

Issues

1. Whether the High Court erred in not properly serving the appellant with summons to enter appearance and plaint.
2. Whether the High Court erred in disregarding the appellant's evidence.
3. Whether the High Court erred in basing his decision on irrelevant matters.
4. Whether the High Court erred in impeding the unfettered jurisdiction granted to him by the law and the rules.
5. Whether the High Court erred in failing to allow the appellant's application to set aside the ex parte judgment.

Reasoning

The High Court was aware of its discretion to set aside the judgment but was unable to exercise it in the appellant's favor due to the lack of a triable issue. The appellant's delay in filing the application to set aside the judgment was considered unreasonable.

Outcome

Appeal dismissed