Municipal Council of Meru v Mariene

High Court, at Meru December 7, 1994

Ong’udi J

Civil Appeal No 96 of 1992

(From the original decision in Civil Suit No 264 of 1992 of the Resident Magistrate’s Court at Meru – JE Ashioya Esq RM)

Civil Practice and Procedure – setting aside summary judgment - application for–– where defence was not filed in time hence interlocutory judgment awarded – where no good reason is offered–– factors to be considered before setting aside interlocutory judgment – discretion – how the Court should exercise discretion.

The plaintiff sued the defendant claiming Shs 57,074/-. Service was effected to the appellant’s Town Clerk but no appearance or defence was filed, prompting interlocutory judgment to be entered for the respondent against the appellant.

When the matter came for formal proof, it was adjourned because the counsel for the appellants had filed an application seeking to set aside the ex parte judgment. The reasons he adduced was that the reason why defence was not filed in time was because of difficulties they encountered in trying to trace the file in time.

Held:

1. A Court on appeal will not interfere with the exercise of a discretion on an application for setting aside summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts, and that a mere denial is not sufficient defence.

2. The magistrate in the exercise of his discretion considered the issues before him meticulously. He enunciated correct principles and properly evaluated whatever material had been placed before him.

Appeal dismissed.

Cases

Mugunga General Stores v Pepco Distributors Ltd [1987] KLR 150; [1988 - 1992] 2 KAR 89

Statutes

No statutes referred.

[Ruling]-Civil practice and procedure-review-application to review the orders appointing the decree-holder as the legal representative of the deceased/plaintiff –application on the ground that there was an error of law on the face of record and the error had adversely affected the applicant/defendant-claim by the applicant that prior to the death of the plaintiff they had amicably settled the plaintiff's claim out of court which amicable settlement was however not recorded as the plaintiff died soon after reaching the settlement-discretion of the court to review-scope of an application for review –whether the application was merited-Section. 80 of the Civil Procedure Act, and Order 44 of the Civil Procedure Rules