Nimrod N. Nchogu & Another v M. S. Chodha & Sons Limited [1995] KECA 121 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a default judgment because a defendant was never allowed to argue he didn't own the vehicle involved.
What this practically means
#Executive summary
#Key legal issues
#Discretion to set aside ex-parte judgment
A court hearing an application to set aside an ex-parte judgment must scrutinise the entire record, including the defence on the merits; where a triable defence on liability (denial of ownership and vicarious liability) appears, the judgment should be set aside, even on terms
The Court of Appeal found that although counsel's explanation for non-attendance was possibly unsatisfactory, the first defendant had denied in his written defence that the vehicle was his and that the driver was his agent. The trial judge who entered the ex-parte judgment appears to have overlooked this defence. The appellate court held that justice required the first defendant be allowed to ventilate his defence on liability, hence setting aside the judgment conditional on a deposit of the decretal sum.
Set aside on terms - conditional relief
Where a defendant is partly responsible for the ex-parte judgment, the discretion to set it aside may properly be exercised subject to terms, here the deposit of the claimed sum in a joint interest-bearing account
The court balanced the respondent's entitlement to the fruits of judgment against the first defendant's right to be heard. Because the appellants contributed to the situation through their counsel's non-attendance, relief was granted conditionally: the decretal amount of K.Shs.85,000/= was to be deposited within 60 days in an interest-bearing account in the joint names of the advocates. The appellants were also denied costs of the appeal.
Legal principles established
#- A defendant who denies vicarious liability on the ground that the offending vehicle did not belong to him should, where justice so requires, be given an opportunity to ventilate that defence, even on terms, before ex-parte judgment is allowed to stand
Court orders
#- 1.Appeal allowed
- 2.Ex-parte judgment entered on 15th July 1992 set aside
- 3.Appellants to deposit K.Shs.85,000/= within 60 days in an interest-bearing account with a reputable Commercial Bank or Financial Institution in the joint names of the Advocates on both sides
- 4.Appellants not to have the costs of this appeal
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 5 of 1985
- Jurisdiction invoked
- First appeal against a ruling of the High Court (Civil Appeal jurisdiction of the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nimrod N. Nchogu & Another v M. S. Chodha & Sons Limited [1995] KECA 121 (KLR)", Case Analysis (1995). Civil Appeal No. 35 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/121/eng@1995-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.