CENEAST AIRLINES LIMITED vs KENYA SHELL LIMITED [1999] KECA 61 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a Shs.21 million default judgment because the summons gave the airline less than the mandatory 10 days to respond.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in dismissing the appellant's application under O.9A r.10 to set aside judgment entered in default of appearance and defence
- 2.Whether triable issues existed in the suit such that the court's discretion under O.9A r.10 should have been exercised in favour of the appellant
- 3.Whether the summons to enter appearance, requiring appearance within 10 days from the date of service, was valid under O.4 r.3(4) of the Civil Procedure Rules
Key legal issues
#Exercise of discretion under O.9A r.10 to set aside default judgment
The Commissioner of Assize should have exercised her discretion in favour of the appellant because triable issues existed, notably the inclusion of value added tax on fuel products that had been exempted by the Ministry of Finance in 1992.
Although service on a director was established, the plaint claimed a large sum for goods sold and delivered which included value added tax on jet fuel and aviation spirit despite a 1992 exemption. That discrepancy raised a prima facie triable issue. The court's discretion under O.9A r.10 is wide and its main concern is to do justice to the parties; it should not be fettered, and where triable issues exist the discretion should ordinarily favour setting the judgment aside.
Validity of the summons to enter appearance
The summons requiring appearance within 10 days from the date of service breached O.4 r.3(4), which mandates not less than 10 days, and was therefore invalid and of no effect.
O.4 r.3(4) fixes the minimum time for appearance at 10 days, to be computed so that appearance is on the 10th day of service or any day thereafter. The summons served required appearance within 10 days from the date of service, which did not allow the full statutory minimum. This mandatory breach rendered the summons invalid, a point noticed by the court sua sponte after allowing the appeal.
Legal principles established
#- The time for entering appearance fixed in a summons cannot be less than 10 days from service; a summons requiring appearance within 10 days from the date of service is invalid and of no effect.
- On an application to set aside judgment, a defence on the merits need not be a defence that must succeed; it suffices that it raises a triable issue warranting trial.
Court orders
#- 1.Appeal allowed with no order as to costs
- 2.Appellant to enter appearance and file a defence within seven days in High Court Civil Case No. 593 of 1998
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani Commercial Courts
- H.C.C.C. No. 593 of 1998
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory order of the High Court (statutory appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act; the judgment does not cite the specific provision)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We think that the learned Commissioner of Assize should have in the circumstances of the matter before her, exercised her unfettered discretion in favour of the Appellant.
This is a clear breach of O4 r.3(4) and makes the summons invalid and of no effect.
In our judgment in this matter delivered on 30th March, 2000, we allowed the appeal by the Appellant Company (hereinafter referred to as the Appellant) with no order as to costs. We also ordered that the Appellant must enter appearance and file a defence within seven days from that date
Issues in the judgment
#The judgment inconsistently refers to the source of O.9A r.10, calling it both the Civil Procedure Rules and the Civil Procedure Code.
The amount claimed is stated inconsistently within the judgment, once as Shs.21,438,007/93 and once as Shs.21,438,007/95.
Chronology in the judgment is internally inconsistent: the request for judgment is dated 23rd December 1998, yet the judgment in default is stated to have been obtained on 4th January 2000, and the application to set aside is dated 15th January 2000 while the ruling dismissing it is dated 20th July 1999, an earlier date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CENEAST AIRLINES LIMITED vs KENYA SHELL LIMITED [1999] KECA 61 (KLR)", Case Analysis (2000). Civil Appeal No. 174 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/61/eng@1999-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.