PITHONI WAWERU MAINA V. THUKA MUGIRIA

JUDGMENT

This is another case concerning the exercise of the judicial discretion under order IXA, rules 10 and 11 and under order IXB rule 8 (which are in the same terms) of the Civil Procedure (Revised) Rules 1948, to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing. As regards the exercise of that discretion, certain principles are now well established in our law.

Firstly, as was stated by Duffus P in Patel v. EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E:

“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just ... The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.”

Secondly, as Harris J said in Shah v. Mbogo [1967] EA 116 at 123B:

“This discretion is intended so to b…