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Court of AppealAllowedCivil Appeal 177 of 1996· [1997] KECA 83 (KLR)

Coach Safaris Limited v Gusii Deluxe Limited [1997] KECA 83 (KLR)

Court of Appeal of Kenya
14 March 1997
RKR. O. KwachASA. B. ShahSBS. E. O. Bosire
502 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a claim for a fixed sum of money needs no formal proof when the defendant never files a defence.

What this practically means

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Executive summary

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The appellant, Coach Safaris Limited, sued the respondent, Gusii Deluxe Limited, for Shs. 1,357,100/- as special damage arising from a collision between the parties' buses at Kericho on 14th October 1992, pleading a liquidated demand and particulars of negligence. The respondent entered appearance but filed no defence. The appellant applied for judgment in default of defence under order 9A rule 3 as read with rule 9 of the Civil Procedure Rules, and on 5th May 1995 the Deputy Registrar purported to enter 'interlocutory' judgment. The Court of Appeal held that, the claim being a liquidated demand, the judgment should in fact have been a final judgment requiring no formal proof. That judgment was set aside by consent on 19th June 1995 on terms that the respondent pay throw-away costs of Shs. 32,000/- within 14 days, failing which the judgment would stand automatically reinstated without further application. The respondent defaulted, so the judgment was automatically reinstated. The Court held that the subsequent formal proof proceedings before Kuloba J were a nullity and a complete waste of judicial time, and declined to consider the propriety of the High Court judgment dated 16th May 1996. The Court allowed the appeal, set aside the decree of 16th May 1996, declared that the judgment of 5th May 1995 remained in place, and awarded the appellant the costs of the appeal. The judgment binds lower courts on the entitlement to final judgment on liquidated demands in default of defence and on the nullity of proceedings following automatic reinstatement.

Key legal issues

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01

Nature of judgment in default of defence on a liquidated demand

Holding

Judgment on a liquidated demand in default of defence is final judgment, not interlocutory judgment, and requires no formal proof.

Reasoning

The Deputy Registrar had purported to enter 'interlocutory' judgment on 5th May 1995 when the claim was for a liquidated sum of Shs. 1,357,100/-. Under order 9A rule 3 as read with rule 9 of the Civil Procedure Rules, a liquidated demand attracts final judgment in default of defence, so formal proof was unnecessary. The mislabelling of the judgment as interlocutory was an error.

p. 1
02

Effect of automatic reinstatement of the default judgment

Holding

The consent order provided that the default judgment would be reinstated automatically upon the defendant's default in paying throw-away costs; the formal proof that followed was a nullity.

Reasoning

The 19th June 1995 consent order setting aside the default judgment was conditional: failure to pay Shs. 32,000/- within 14 days would result in automatic reinstatement without further application. The defendant defaulted, so the judgment stood reinstated by operation of the consent terms. Consequently the formal proof proceedings and the judgment of Kuloba J dated 16th May 1996 were of no effect and the Court declined to examine their propriety.

p. 2

Legal principles established

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  • Where a plaintiff makes a liquidated demand and the defendant defaults in filing a defence, the plaintiff is entitled to final judgment in default of defence under order 9A rule 3 of the Civil Procedure Rules, and no formal proof is required.
  • Where a default judgment is reinstated automatically upon a party's default of consent terms, all subsequent proceedings, including formal proof, are a nullity.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decree of the superior court dated 16th May, 1996 set aside
  3. 3.Declaration that the judgment entered on 5th May, 1995 remains in place
  4. 4.Plaintiff awarded the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 9A rule 3
  • Civil Procedure RulesOrder 9A rule 9
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 484 of 1993
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction (Civil Appeal 177 of 1996)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Coach Safaris Limited v Gusii Deluxe Limited [1997] KECA 83 (KLR)", Case Analysis (1997). Civil Appeal 177 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/83/eng@1997-03-14

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