African Banking Corporation Limited v Rajan Rajnikant Dhanani [2021] KEELC 4133 (KLR)

Facts

The respondent filed a suit for delivery of vacant possession and rent against the appellant, who had sold the property in question. The appellant filed a statement of defence nine days after the prescribed time.

Issues

1. Whether the learned trial magistrate erred in law and fact in finding that the appellant had not given sufficient reasons for filing the statement of defence out of time.
2. Whether the learned trial magistrate erred in law for failing to consider whether the appellant had an arguable defence deserving to be heard on merits.
3. Whether the learned trial magistrate erred in law in upholding the ex parte judgment without granting the appellant an opportunity to be heard at all.
4. Whether the learned trial magistrate erred in law and in fact in failing to consider that no prejudice would be visited on the plaintiff if the ex parte judgment was set aside.
5. Whether the learned trial magistrate erred in law and fact in failing to consider that the delay in filing the statement of defence was not inordinate.
6. Whether the learned trial magistrate erred in law in finding that the default judgment was regular yet the respondent was awarded a liquidated sum of Kshs.12,500,000.00 as rent without an iota of proof of income accounts from the premises.

Reasoning

The court finds that the learned trial magistrate erred in upholding the ex parte judgment, denying the appellant an opportunity to be heard, and in finding that the judgment entered was regular without proof.

Outcome

Appeal allowed

Authorities cited