Daniel Namayi Ambunya v Juma Iddi Hamisi [2015] KEHC 278 (KLR)
- Court
- High Court of Kenya
- Case number
- 278
- Citation
- [2015] KEHC 278 (KLR)
- Decided
- 30 October 2015
The ex parte judgment entered against the 3rd Defendant/Applicant in default of appearance and defence and all consequential proceedings are set aside unconditionally.
Facts
The Appellant filed a civil suit against the Respondent in 2009. The Appellant requested an interlocutory judgment on June 22, 2010, based on an affidavit of service. An interlocutory judgment was entered on July 1, 2010, followed by a judgment on May 27, 2011, finding the Appellant liable and awarding damages. Execution proceedings ensued, leading to the Appellant's application for an interim stay.
Issues
- Whether the trial court erred in law by treating the Appellant's application as conclusive rebuttal of the Plaintiff's claim.
- Whether the trial court erred in law and fact by failing to consider the Appellant's evidence in its entirety.
- Whether the trial court erred in law and fact by not considering that the Appellant had proved his case on a balance of probability.
- Whether the trial court erred in law by failing to decide on all the issues raised in the matter.
- Whether the trial court erred in law by failing to observe that the Appellant had a strong case with three issues that could only be proved by evidence, which the Appellant was not given the opportunity.
Reasoning
The Court found that the trial court erred in law by treating the Appellant's application as conclusive rebuttal of the Plaintiff's claim and by failing to consider the Appellant's evidence in its entirety.
Outcome
The appeal is allowed, and the ex parte judgment is set aside.
Orders
- The ex parte judgment entered against the 3rd Defendant/Applicant in default of appearance and defence and all consequential proceedings be set aside unconditionally.
- Leave be granted to the 3rd Defendant's to file its defence and the annexed draft defence deemed duly filed subject only to the payment of the court filling fees.
- That the attachment of the 3rd Defendant's/Applicant's property be raised and/or waived and the attached property be released to the 3rd Defendant'/Applicant.
- Costs of this application be provided for.
Remedies
- The ex parte judgment is set aside.
- Leave is granted to the 3rd Defendant to file its defence.
- The attached property is released to the 3rd Defendant.
- Costs are provided for the Appellant.
Authorities cited
Cases cited (3)
- Mwanasokoni -versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278
- Kiruga -versus- Kiruga & Another (1988) KLR 348
- Grafton Isaacs -vs- Robertson (1985) 1 AC 97
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