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Court of AppealPartially AllowedCivil Appeal 280 of 2005· [2007] KECA 471 (KLR)

Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang t/a Faida 2002 Caterers [2007] KECA 471 (KLR)

Court of Appeal of Kenya
29 June 2007
EOE.O. O'KubasuEGE.M. GithinjiPWP.N. Waki
2,744 words in judgment
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The bottom line

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Kenya's Court of Appeal set aside a default judgment because the judge ignored the defendant's filed defence, but required a Kshs. 1 million deposit as a condition.

What this practically means

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Executive summary

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This Court of Appeal judgment (O'Kubasu, Githinji and Waki, JJA) concerned an appeal against a High Court ruling (Kasango, J) dismissing the appellant's application to set aside an ex parte judgment entered after its counsel failed to attend the hearing of H.C.C.C No. 682 of 2003. The appellant's counsel admitted a mistake in his office in failing to diarise the hearing date, and the application was not filed until about a month after judgment. The Court restated the settled principles governing the exercise of discretion in setting aside ex parte judgments, drawing on Shah v Mbogo, Mbogo v Shah, Patel v EA Cargo Handling Services Ltd, Evans v Bartlam and its own decisions in CMC Holdings Ltd v Nzioki and Magunga General Stores v Pepco Distributors. While declining to fault the judge's assessment of the explanation for non-attendance, the Court found that she failed to consider the defence on record, which ought to have been considered however irregularly placed on file. The Court held that a defence raising bona fide triable issues ought to be allowed to proceed to hearing on the merits, since a party should not be condemned unheard. The Court allowed the appeal, set aside the ruling of 21st April 2005, and in substitution allowed the Chamber Summons dated 20th December 2004, thereby setting aside the ex parte judgment. The allowance was conditional: the appellant was to deposit Kshs. 1,000,000 in an interest-earning joint account in the names of both counsel within 30 days, failing which the appeal would stand dismissed with costs. Each party was otherwise to bear its own costs of the appeal.

Key legal issues

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01

Exercise of discretion in setting aside ex parte judgments

Holding

The discretion is free and wide, to be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately sought to obstruct or delay the course of justice

Reasoning

The court restated the settled principles from Shah v Mbogo, Mbogo v Shah and Patel v EA Cargo Handling Services Ltd: the judge's discretion has no limits or restrictions except that any variation of judgment must be on just terms; the discretion is designed to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction. Mistake or misunderstanding by legal advisers, even if negligent, may be a proper ground for relief depending on the facts.

p. 4
02

Failure to consider the defence on record

Holding

The trial judge erred by determining the explanation for non-attendance without considering the defence filed, which ought to have been considered however irregularly placed on record

Reasoning

While the Court of Appeal did not fault the judge's treatment of the explanation for non-appearance, it found no consideration of the defence on record. Because a party should not be condemned unheard, a defence raising bona fide triable issues ought to be allowed to proceed to hearing. Had the judge paid attention to the defence, she might have reached a different conclusion.

p. 5
03

Appellate interference with discretionary decisions

Holding

An appellate court interferes only where the discretion was exercised wrongly in principle or perversely on the facts

Reasoning

Relying on CMC Holdings Limited v Nzioki and Magunga General Stores v Pepco Distributors, the court affirmed that discretion in setting aside ex parte judgment must be exercised upon reasons and judiciously, and an appellate court will not interfere unless the exercise was wrong in principle or perverse. Each case must be considered on its own peculiar circumstances.

p. 5

Legal principles established

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  • Where there is a defence raising bona fide triable issues, that defence ought to be considered and the matter allowed to proceed to hearing on the merits, notwithstanding procedural irregularities
  • An appellate court will not interfere with the exercise of discretion on an application to set aside ex parte judgment unless the discretion was exercised wrongly in principle or the court acted perversely on the facts
  • A party should not be condemned unheard, subject to the Civil Procedure Rules, and a defence on record ought to be considered however irregularly placed on record

Court orders

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  1. 1.Appeal allowed and the ruling of the learned Judge dated 21st April 2005 set aside
  2. 2.An order substituted allowing the Chamber Summons dated 20th December 2004, with the result that the superior court's ex parte judgment dated 9th December 2004 is set aside
  3. 3.The appeal allowed on condition that the appellant deposits Kshs. 1,000,000/- in an interest earning joint account in the names of counsel for both parties within 30 days of the judgment
  4. 4.In default of payment of the deposit the appeal shall stand dismissed with costs
  5. 5.Each party to otherwise bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 1XA Rule 10
  • Civil Procedure RulesOrder XXI Rules 22-25
  • Civil Procedure RulesOrder XXXIX Rules 1 and 2
  • Civil Procedure ActSection 3A
  • Civil Procedure (Revised) Rules 1948Order 9A rules 10 and 11; Order 9B rule 8
  • Civil Procedure (Revised) Rules 1948Order 9 rule 20

Cases cited (8)

  • Shah v Mbogo
    [1967] E.A. 116
  • Mbogo v Shah
    [1968] E.A. 93
  • Patel v E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
  • Pithon Waweru Maina v Thuka Mugiria
    (1982-88) 1 KAR 171
  • Shabir Din v Ram Parkash Anand
    [1955] 22 EACA 48
  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
  • Magunga General Stores v Pepco Distributors
    [1987] 2 KAR 89
  • Evans v Bartlam
    [1937] 2 All ER 646
On appeal from
High Court of Kenya, Milimani Commercial Courts
H.C.C.C No. 682 of 2003
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Civil Procedure Act/appeal from ruling of the superior court (ruling dismissing application to set aside ex parte judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang t/a Faida 2002 Caterers [2007] KECA 471 (KLR)", Case Analysis (2007). Civil Appeal 280 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/471/eng@2007-06-29

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