Jeremiah's Creek Limited v Charles Kamau [2013] KEELC 58 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant/defendant has established a case persuading this court to exercise its unfettered discretion to set aside the interlocutory judgment entered herein
Key legal issues
#Whether the court should set aside the interlocutory judgment entered against the defendant
The court set aside the interlocutory judgment because the delay in filing the defence was not excessive, the reasons were understandable, and no prejudice would be suffered by the plaintiff
The court applied the settled principles that its discretion to set aside an ex parte judgment is unfettered but must be exercised on just terms. It found triable issues in the defence relating to fraud in the transfer of the land, held that land disputes are best resolved at a full hearing, and concluded that the delay occasioned by counsel's daughter's illness was understandable and compensable by costs.
Whether the defence filed out of time should be deemed properly filed
The court enlarged time and deemed the defence filed on 9th May 2012 as properly filed
Having set aside the interlocutory judgment, the court extended the time for filing and serving the defence so that the defence already filed on 9th May 2012 would stand as properly on record, enabling the triable issues, including the defendant's counterclaim, to be ventilated at a full hearing.
Legal principles established
#- The discretion of the court to set aside an ex parte judgment is unfettered except that if the judgment is set aside it must be done on terms that are just
- A defence on merits does not mean a defence that must succeed; it means a defence raising triable issues
- To deny a party a hearing should be the last resort of a court
Court orders
#- 1.The interlocutory judgment entered on 28th March 2011 is set aside.
- 2.Time to file and serve the defence is enlarged and the defence filed on 9th May 2012 is deemed as properly filed.
- 3.The plaintiff is granted fourteen (14) days to file the reply to the defence and counterclaim.
- 4.The costs of this application shall be borne by the applicant, the same to be taxed by the taxing master in favour of the plaintiff.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 10 Rules 7, 10 and 11 and Order 50 rule 5 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court therefore makes the following orders. (a) The interlocutory judgment entered on 28th March 2011 is set aside.
Defence on merits does not mean a defence that must succeed. It means a defence raising triable issues that should go on trials or adjudication.
it should always be remembered that to deny the subject a hearing should be the last resort of a court
There is no doubt that there are triable issues in the defence filed out of time.
Issues in the judgment
#The judgment states the interlocutory judgment was entered on 28th March 2012 in the body but the final orders refer to 28th March 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah's Creek Limited v Charles Kamau [2013] KEELC 58 (KLR)", Case Analysis (2013). Civil Suit No. 108 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/58/eng@2013-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.