Thuo Mathenge & another v Family Bank (K) Limited [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Commercial & Tax Division
Category
Civil
Judge(s)
Justice Maureen A. Odero
Judgment Date
September 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Thuo Mathenge & another v Family Bank (K) Limited [2020] eKLR case summary, highlighting key legal principles and outcomes. Perfect for legal professionals and students alike.


Case Brief: Thuo Mathenge & another v Family Bank (K) Limited [2020] eKLR

1. Case Information:
- Name of the Case: Thuo Mathenge & Another v. Family Bank (K) Limited
- Case Number: Civil Suit No. E291 of 2019
- Court: High Court of Kenya at Nairobi, Commercial & Tax Division
- Date Delivered: 29th September 2020
- Category of Law: Civil
- Judge(s): Justice Maureen A. Odero
- Country: Kenya

2. Questions Presented:
The central legal issues before the court were whether the judgment entered in default of defense against the Applicants should be set aside, and whether the Applicants should be granted leave to defend the suit.

3. Facts of the Case:
The case involved two Applicants, Thuo Mathenge (1st Applicant/Defendant) and Rawlings Mathenge Thuo (2nd Applicant/Defendant), who were being sued by Family Bank (K) Limited (Respondent/Plaintiff) for Kshs.164,548,679.09 owed under a personal guarantee and indemnity dated 24th February 2016. The Plaint was filed on 18th September 2019, and the Applicants were served with summons to enter appearance in October 2019. They failed to respond within the stipulated time, resulting in a judgment in default entered on 25th November 2019. The Applicants claimed they only became aware of the judgment on 15th January 2020, when they received a Notice of Entry of Judgment.

4. Procedural History:
The Applicants filed a Notice of Motion on 20th January 2020, seeking to set aside the default judgment and to be granted leave to defend the suit. This motion was supported by an affidavit from their advocate, John Kabira Kioni. The Respondent opposed the application through a Replying Affidavit sworn by Sylvia Wambani, a legal officer with the bank. Both parties submitted written arguments, with the Applicants filing theirs on 2nd March 2020 and the Respondent's on 10th March 2020.

5. Analysis:
- Rules: The court considered the provisions of the Civil Procedure Act and the Civil Procedure Rules, particularly Order 10 Rule 11, which allows the court to set aside a judgment entered in default of defense if it is deemed just to do so.
- Case Law: The court referenced several cases to guide its decision, including:
- *James Kanyiita Nderitu & Another v. Philotas Ghikas & Another [2016] eKLR,* which distinguishes between regular and irregular judgments.
- *Pithon Waweru Maina v. Thuka Mugira [1983] eKLR,* which emphasizes the judge's discretion in setting aside judgments to avoid injustice.
- *Philip Chemwolo & Another v. Augustine Kubede [1982-88] KAR,* and *Belinda Murai & Others v. Amos Wainaina,* which support the principle that mistakes should not preclude a party from having their case heard on merit.
- Application: The court found that the judgment against the Applicants was regular since they had been duly served with summons. However, it acknowledged that the failure to respond was due to an error by the Applicants' advocate, which should not result in them being denied a chance to defend themselves. The court noted that the defense raised triable issues and that denying the Applicants a hearing would be unjust. Consequently, the court ruled in favor of the Applicants, allowing them to set aside the judgment and granting them leave to defend the suit.

6. Conclusion:
The court ruled in favor of the Applicants, allowing their motion to set aside the default judgment and granting them unconditional leave to defend the suit. The decision underscored the importance of justice and the right to be heard, particularly in cases involving substantial sums of money.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The High Court of Kenya ruled in favor of Thuo Mathenge and Rawlings Mathenge Thuo, allowing them to set aside a default judgment entered against them by Family Bank (K) Limited. The court emphasized the necessity of justice and the right to a fair hearing, particularly in cases involving significant financial implications. This ruling highlights the judiciary's commitment to rectifying errors that occur due to the negligence of legal representatives, ensuring that parties have the opportunity to present their cases.

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