Multi-Options Limited v Kenya Co-Operative Creameries Limited [1998] KECA 168 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a default judgment entered after a defendant files an appearance is irregular and must be set aside as of right.
What this practically means
#Executive summary
#Key legal issues
#Whether judgment in default of appearance could stand where a memorandum of appearance had been filed before entry of judgment
The entry of judgment on 27th February 1998 was incorrect because appearance had already been entered on 26th February 1998; the judge rightly set it aside.
Order IX rule 1 permits appearance to be entered at any time before judgment is actually entered. The respondent's advocates filed a memorandum of appearance on 26th February 1998 and a statement of defence on 27th February 1998. Judgment entered thereafter, despite the confusion over whether the date was 24th or 27th February, was irregular. The judge relied on the uncertainty of the date of entry of judgment, and rightly so, in setting it aside.
Whether the judge was obliged to consider the merits of the defence or impose conditions when setting aside the ex-parte judgment
No. Where judgment is entered after filing of appearance, the judge may set it aside ex debito justitiae without considering the merits of the defence.
The appellant complained it was not granted an audience and that the judge failed to consider the merits of the defence so as to impose conditions. The court held that the merits of the defence were not in issue where the judgment was irregularly entered; the power to set aside such a judgment arises as of right, and the judge exercised his discretion properly, leaving no basis for appellate interference.
Legal principles established
#- Under Order IX rule 1 of the Civil Procedure Rules, appearance may be entered at any time before judgment is actually entered, and a judgment entered after a memorandum of appearance has been filed is irregular and may be set aside ex debito justitiae without regard to the merits of the defence.
- A judge setting aside an irregularly entered ex-parte judgment is not bound to consider the merits of the defence.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.S. No. 14 of 1998
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (appeal from the Ruling/Order of the High Court of Kenya Nairobi on 22nd April 1998)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Multi-Options Limited v Kenya Co-Operative Creameries Limited [1998] KECA 168 (KLR)", Case Analysis (1998). Civil Appeal No. 100 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/168/eng@1998-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.