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Court of AppealAllowedCivil Appeal No. 55 of 1996

Kenwood Trading Company Limited v Leonard Mutua [1997] KECA 298 (KLR)

Court of Appeal of Kenya
22 October 1997
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a client shouldn't lose their case just because their lawyer missed a hearing by mistake.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Shah and Pall, JJ.A) allowed the appellant's appeal against a High Court ruling (H.K. Githinji, J, dated 18th July 1991) refusing to set aside an ex-parte judgment entered after a summary judgment application under Order 35 rule 1 was heard in the absence of the defendant's counsel. The respondent had sued for Shs.2,500,000 on a sale-of-goods claim or, alternatively, three dishonoured cheques. The appellant's advocate, Mrs Rawal, was served one day before travelling overseas; she briefed a newly admitted junior advocate who arrived at chambers one minute after 11.00 a.m. and was told the matter had already been heard. The learned judge refused to set aside the ex-parte judgment, holding that counsel's absence was not a good judicial reason. The Court of Appeal held that the judge erred: the discretion under Order IXA rule 10 is almost unfettered, subject only to the requirements of justice to both sides, and requires an overall view of all circumstances leading to non-appearance, including the litigant's interests. Drawing on Patel v E.A. Cargo Handling Services Ltd, Shah v Mbogo, Mbogo v Shah and Shabir Din v Ram Parkash Anand, the court reaffirmed that a litigant should not be shut out by a slip or oversight of counsel. The court also observed that Notices of Motion ought to be heard in open court, or with chamber doors left totally ajar. The ex-parte judgment was set aside, the summary judgment application dismissed with costs, the defence restored, and the stay condition extended until determination of the suit. The appellant received costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in refusing to set aside the ex-parte judgment entered after the summary judgment application was heard in the absence of the defendant's counsel
  2. 2.Whether the explanations given by Mrs Rawal and Miss Rodrigues for non-appearance constituted a sufficient basis for the judge to exercise his discretion to set aside the ex-parte judgment
  3. 3.Whether the appellate court should interfere with the discretion exercised by the superior court

Key legal issues

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01

Exercise of discretion to set aside an ex-parte judgment

Holding

The learned judge erred by being primarily motivated by the absence of counsel rather than taking an overall view of the circumstances; the explanations for non-appearance were unchallenged and sufficient, so the appellate court interfered with the discretion.

Reasoning

The judge treated Mrs Rawal's absence as lacking good judicial reason, but the Court of Appeal held that the discretion requires an overall view of all circumstances leading to non-appearance, including the litigant's interests. Mrs Rawal was served one day before travelling overseas yet prepared grounds of objection and briefed a junior advocate who attended but arrived one minute late. Her unchallenged affidavit evidence showed no inaction or deliberate default, so cogent grounds existed to set aside the ex-parte judgment.

p. 3
02

Scope of the judge's discretion under Order IXA rule 10

Holding

The discretion is almost unfettered, subject only to the requirements of justice to both sides, and is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice.

Reasoning

Relying on Patel v E.A. Cargo Handling Services Ltd, Shah v Mbogo, Mbogo v Shah and Shabir Din v Ram Parkash Anand, the court reaffirmed that the main concern is to do justice between the parties and the court will not fetter the wide discretion given by the rules. Mistake or negligence of a party's legal advisers may be accepted as a proper ground for granting relief depending on the facts.

p. 3

Legal principles established

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  • A litigant should not be shut out from defending a claim because of a slip or oversight by counsel; the court should, if possible, give the client a chance to put forward the defence.
  • The discretion to set aside an ex-parte judgment under Order IXA rule 10 is almost unfettered, subject only to the requirements of justice to both sides, and requires an overall view of all circumstances leading to non-appearance.
  • A Notice of Motion in the superior court ought to be heard in open court; if heard in chambers, the chamber door should be left totally ajar so parties and counsel know which matter is being heard.

Court orders

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  1. 1.The ex-parte judgment entered by the superior court on 27th June, 1991 is set aside
  2. 2.The plaintiff's application for summary judgment is dismissed with costs
  3. 3.The defence is restored and the defendant is given leave to defend the suit and prosecute its counterclaim
  4. 4.The condition of stay of execution imposed pending the appeal is extended until the hearing and determination of the suit in the superior court
  5. 5.The appellant is awarded costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1498 of 1991
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the Ruling and Order of the High Court)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Exercise of discretion not to set aside an ex-parte judgment requires an overall view of all circumstances which lead to non-appearance of the defendant or counsel.
p. 3Discretion to set aside ex-parte judgment
If a defendant cannot put forward his defence because of a slip or oversight by his counsel, the court should, if possible, give a chance to that client to put forward his defence.
p. 3Litigant's right to be heard despite counsel's slip
This discretion is intended to be exercised to avoid injustice or hardship resulting from an accident, inadvertence, or excusable mistake or error, but it is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
p. 3Purpose of the discretion (Shah v Mbogo principle)
Considering all the circumstances of this matter, we allow the appeal with the result that the ex-parte judgment entered by the superior court on 27th June, 1991 is set aside and the plaintiff's application for summary judgment is dismissed with costs.
p. 4Final orders / disposition

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, "Kenwood Trading Company Limited v Leonard Mutua [1997] KECA 298 (KLR)", Case Analysis (1997). Civil Appeal No. 55 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/298/eng@1997-10-22

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