James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)
- Court
- Court of Appeal
- Case number
- 470
- Citation
- [2016] KECA 470 (KLR)
The court dismissed the appeal and set aside the default judgment, finding that the irregularity was brought to the court's attention and that the court has the inherent power to correct such irregularities.
Facts
The dispute involves a property originally owned by Androniki Philotas Ghikas, who died in 1992. Her son, Marios Philotas Ghikas, sold the property to the appellants, James Kanyiita Nderitu and Hellen Njeri Nderitu, without proper legal authority. The appellants filed a suit for specific performance, and a default judgment was entered against Marios.
Issues
- Whether the High Court can set aside a judgment obtained irregularly
- Whether the court can set aside a default judgment if the defendant dies during the application process
Reasoning
The court held that the court has the power to correct initial irregularities and that the irregular default judgment was set aside as a matter of right. The court also noted that the irregularity was brought to the court's attention by the administrator of the estate and the claimant through adverse possession.
Outcome
Appeal dismissed
Orders
- Default judgment set aside
Authorities cited
Cases cited (2)
- Craig v Kanseen (1943) 1 All ER 108
- Ali Bin Khamis v. Salim Bin Khamis Kirobe & Others (1956) 1 EA 195
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