Century Cinemax Ltd VS Convex Commercial Logistics

1. Before the court is an application dated 23rd October, 2023 seeking stay of execution of a decree herein and for setting aside the ex parte judgment entered on 22nd June, 2022.

2. The reason given by counsel is that there was a mix up of the statement of defence and documents in this case with other documents which related to a different suit.  The applicants state that counsel became aware of this matter and entry of judgment on 18th March, 2023, having chanced upon it on CTS even though judgment in default of defence had been entered on 22nd June, 2022.

3. The record however tells of a different story as relayed by the respondents which is that the applicant in fact knew of the existence of the suit way before 18th March, 2023.  The numerous affidavits of service that are on record are illustrative of the fact that the applicants had been served each time the matter was before court but failed to attend.

4. Even after judgement had been entered, a taxation notice dated 18th July, 2022 and bill of costs were served on the applicant’s counsel.  The applicants received a taxation notice for 28th July 2022 and even appeared in court during taxation.

5. Evidence presented by the respondents of the applicant’s counsel reaching out to find out the status of the taxation has not been denied by the applicants. In fact, the applicants admit in their further affidavit that there was such communication between the plaintiffs and advocates in the conduct of the matter in their office, blaming the advocate for not having carried out his obligations as an employee

6. Even while this is so, no reason has been given why this application could not be filed all this time and why the situation persisted despite the notices that were being served on the applicant’s law firm.

7. I have said enough to show that the alleged error herein was inexcusable and does not warrant the exercise of discretion in the applicants’ favour. The applicants failed to vigilantly pursue this matter and as an afterthought now seek to take advantage of the situation claiming that they were not aware that judgment had been entered.

8. That said, I have also considered the draft statement of defence attached to the application. The same contains mere statements of denial and does not raise tangible triable issues for determination.  I say so noting that no evidence for payment to KRA of the amount in dispute has been produced.

9. Needless to say, a party who wishes to benefit from discretionary relief before the court must come to court with clean hands.

10. For all the reasons that I have stated, I am convinced that the application before court lacks merit and the same is dismissed with costs to the respondents.