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Court of AppealAllowedNot stated in the judgment

Ruth Wanjiku Njoroge v Henry Katume Mutugwa [1995] KECA 151 (KLR)

Court of Appeal of Kenya
7 June 1995
JGJ. M. GACHUHIJGJ. E. GICHERUAAA. M. AKIWUMI
1,464 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that courts can set aside default judgments when a late defence raises real triable issues, even if the delay is unexplained.

What this practically means

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Executive summary

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The respondent sued the appellant in the superior court seeking return of a motor vehicle, its log book, and damages for loss of use, alleging he had paid the purchase installments into the appellant's bank account. When no defence was filed, interlocutory judgment was entered against the appellant, who then filed a defence out of time denying the claim and asserting that the suit was an abuse of process because the respondent had earlier failed in a suit (HCCC No 6405 of 1992) over the same vehicle. The appellant applied to set aside the default judgment and to have the late defence deemed filed in time. The superior court judge dismissed the application, confining himself to whether the delay in filing the defence deserved sympathy, and made no finding on whether the defence raised triable issues. Allowing the appeal, the Court of Appeal held that the judge erred by ignoring the merits of the defence, which raised triable issues, and by failing to consider the application under section 3A of the Civil Procedure Act in light of the uncontroverted prima facie evidence that the suit was an abuse of the process of the court. Relying on Girado v Alam & Sons (U) Ltd, the Court held that a default judgment may be set aside under the court's inherent jurisdiction despite an unsatisfactory explanation for delay, where the ends of justice or the prevention of abuse of process so require. The Court set aside the ex parte judgment of 10th November, 1993, deemed the defence filed in time, and ordered each party to bear their own costs of the appeal. This judgment binds subordinate courts on the exercise of the inherent jurisdiction where triable issues exist.

Key legal issues

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01

Whether a default judgment should be set aside where the defence raises triable issues, notwithstanding unexplained delay in filing the defence

Holding

Yes. The judge below erred by confining himself to whether the delay deserved sympathy and ignoring whether the defence raised triable issues. The appeal was allowed and the default judgment set aside.

Reasoning

The Court of Appeal found that the superior court judge considered only one aspect of the application - the inordinate delay - and made no finding on the defence's merits. The defence raised triable issues and disclosed prima facie evidence that the suit was an abuse of process. Since the application was also brought under section 3A invoking the inherent jurisdiction, the ends of justice and the need to prevent abuse of process outweighed the unsatisfactory explanation for delay. The application should therefore have been allowed.

p. 3
02

Whether the respondent's suit was an abuse of the process of the court given the earlier suit on the same subject matter

Holding

There was prima facie evidence that the suit was an abuse of the process of the court, and this was not controverted in the respondent's replying affidavit.

Reasoning

The defence averred that the respondent had failed to obtain similar orders in an earlier suit (HCCC No 6405 of 1992) against the appellant over the same vehicle, abandoned that suit, and brought the present suit in abuse of the process of the court. The respondent's replying affidavit, which stressed the delay in filing the defence, was silent on this allegation, and the Court treated that silence as leaving the abuse-of-process allegation uncontroverted.

p. 3

Legal principles established

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  • A court considering setting aside a default judgment must consider whether the defence raises triable issues and whether admitting it is necessary for the ends of justice or to prevent abuse of the process of the court, notwithstanding an unsatisfactory explanation for delay.
  • Under the inherent jurisdiction (section 3A, Civil Procedure Act), a default judgment may be set aside even where no sufficient cause for the default is shown, so as to avoid injustice.

Court orders

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  1. 1.The appeal succeeds
  2. 2.The ex parte (interlocutory) judgment entered on 10th November, 1993 is set aside
  3. 3.The defence filed on 22nd December, 1993 is deemed to have been filed in time
  4. 4.Each party to bear his own costs of the appeal
On appeal from
High Court of Kenya (superior court)
Suit filed 9th September, 1993 (number not stated); related earlier suit HCCC No 6405 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal from the superior court's dismissal of the appellant's application (no specific constitutional/statutory basis stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ruth Wanjiku Njoroge v Henry Katume Mutugwa [1995] KECA 151 (KLR)", Case Analysis (1995). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/151/eng@1995-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.