CORNELIUS WARUTERE V JUSTUS KIBUCHI GATURUHU [2010] KEHC 2249 (KLR)
- Court
- High Court of Kenya
- Case number
- 2249
- Citation
- [2010] KEHC 2249 (KLR)
- Decided
- 11 June 2010
The Defendant's counsel's failure to note the hearing date in his diary is a genuine mistake and constitutes a good reason to set aside the exparte proceedings and judgment. The Defendant is ordered to pay the Plaintiff's thrown away costs of Ksh.10,000 within the next 30 days.
Facts
The Plaintiff, Cornelius Warutere, was granted leave to proceed for hearing ex parte on 28 July 2009, and judgment was entered in his favor against the Defendant, Justus Kibuchi Gaturuhu, on 26 August 2009. The Defendant now seeks to set aside the proceedings and judgment.
Issues
- Whether the Defendant's counsel's failure to note the hearing date in his diary constitutes a good reason to set aside the exparte proceedings and judgment.
- Whether the Defendant's counsel's failure to inform the Defendant of the hearing date constitutes a good reason to set aside the exparte proceedings and judgment.
Reasoning
The court found that the Defendant's counsel's failure to note the hearing date in his diary was a genuine mistake, occurring daily in many offices. There is no evidence to suggest that the Defendant's counsel intentionally refused to inform the Defendant of the hearing date or refused to attend court.
Outcome
The Defendant's application to set aside the exparte proceedings and judgment is allowed.
Orders
- The Defendant is ordered to pay the Plaintiff's thrown away costs of Ksh.10,000 within the next 30 days.
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