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|Case Number:||civ suit 25 of 01|
|Parties:||BASILIO CHABALI vs 1.SUDI KAULI MWATELA 2.M.A. BAYUSUF & SONS LTD|
|Date Delivered:||03 Feb 2004|
|Court:||High Court at Malindi|
|Judge(s):||Joyce Nuku Khaminwa|
|Citation:||BASILIO CHABALI vs 1.SUDI KAULI MWATELA 2.M.A. BAYUSUF & SONS LTD eKLR|
|History Advocates:||Neither party represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 25 OF 2001
V E R S U S
1.SUDI KAULI MWATELA……………………………1ST DEFENDANT
2.M.A. BAYUSUF & SONS LTD……………………..2ND DEFENDANT
R U L I N G
By application dated 31/10/03 the Defendant seeks to set aside proceedings and judgment entered into on quantum of damages on 15/10/03. The Defendant seeks unconditional leave to be heard in the defence. The reasons advanced are that there was confusion as to the hearing dates resulting in the failure of Defendant counsel to be present in court (in Malindi) when the case was called for formal proof.
I have considered the supporting affidavit and the reply thereof. It is quite clear that the advocate of the Plaintiff proceeded to serve two different hearing notices and thus confused the Defendants’ Advocate who attended court on the wrong date. There is no allegation that the non-attendance was deliberate. The parties had already entered judgment on liability. The Defendant was entitled to be heard as to the assessment of damages. That right cannot be taken away from a party except in most clear cases. I find therefore the Defendant has shown a good reason why he failed to appear in court when the suit proceeded. His failure cannot be visited on his client the Defendant and therefore I am inclined to allow the application.
Orders are granted as prayed in the Chamber Summons dated 31/10/03. Costs shall be in the cause.
Read in presence of:-
Mr. Muthama – H/B
Joyce Khaminwa, J.