MAWJI PATEL v TONY KETER [2008] KEHC 2044 (KLR)

Facts

The Plaintiff filed an application under Order IXB, Rule 8 Civil Procedure Rules, seeking to revisit the question of whether the Defendant should have been given an opportunity to attend court to testify on the hearing date.

Issues

1. Whether the Defendant should have been given an opportunity to attend court to testify on the hearing date.
2. Whether the judgment was an ex parte judgment or one delivered after a full trial involving both parties.

Reasoning

The Court considers the application under the principles of natural justice and the principles set out in CMC HOLDINGS LTD v NZIOKI (2004) 1 KLR 173, where the Court of Appeal held that in an application for setting aside an ex parte judgment, the Court must consider not only the reasons why the defense was not filed or why the Appellant failed to turn up for hearing, but also whether the defense if filed already or if a draft defense is annexed raised triable issues.

Outcome

Dismissed

Authorities cited