Bai Lin (K) Limited & 2 others v Zingo Investments Limited & another [2016] KECA 83 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a default judgment, confirming courts should only deny a hearing as a last resort.
What this practically means
#Executive summary
#Key legal issues
#Whether default judgment may be entered against a party who fails to file a defence to a counter-claim
Yes. A counter-claim follows the course of a suit and under Order 7 rule 17(3) a defence to a counter-claim is subject to the rules applicable to a defence, so default judgment procedures apply.
The court held that although this argument was not before the judge below, Order 7 of the Civil Procedure Rules leaves no doubt that a counter-claim, as an independent or cross-action, follows the course of a suit. Rule 5 requires pleadings to be accompanied by the same documents as if it were a suit, rule 11 requires a party named in a counter-claim to deliver a reply within fifteen days, and rule 17(3) expressly subjects a defence to a counter-claim to the rules applicable to a defence.
Whether the judge properly exercised his discretion in refusing to set aside the interlocutory judgment
No. He failed to balance the cardinal considerations of doing justice between the parties and treating denial of a hearing as a last resort; the draft defence raised prima facie triable issues, the delay was not inordinate, and costs would compensate the respondents.
The court found the judge guessed on the central question of the date of service, wrongly found the draft defence a sham despite it raising disputes over the second contract and the distinction between wet blue skins and wet blue hides, wrongly branded the advocate's conduct unprofessional, and failed to weigh that the respondents had taken no steps after judgment. The appeal court concluded the discretion was exercised improperly and reversed.
The proper mode of service where chambers are locked
Slipping documents under the door has the same effect as affixing them on the door, but postage without leave of the court is not a valid substituted mode of service; nonetheless service was duly effected by leaving the documents at chambers.
The process server found the chambers locked and slipped the documents under the door, which the court held equivalent to affixing on the door under Order 5 rule 14 as read with Order 7 rule 20. However, resort to registered post was an impermissible substituted mode of service without leave. The court reached the same conclusion as the judge, that service was effected, though for a different reason.
Whether closing a sole practitioner's chambers with a notice on the door directing delivery elsewhere is unprofessional conduct justifying refusal to set aside default judgment
No. Given the advocate's explained engagement in out-of-town boundary delimitation cases, the arrangement was not unreasonable and did not amount to unprofessionalism.
The court distinguished simply shutting down and vanishing from a situation where the advocate posted a notice and explained her absence. Sole proprietors fall sick, are bereaved or travel; here the work required her staff to accompany her, and the process server confirmed the chambers were closed. The judge's finding of unprofessionalism was therefore unwarranted.
Legal principles established
#- A counter-claim follows the course of a suit, and a defence to a counter-claim is subject to the rules applicable to a defence
- The Court of Appeal will not interfere with a judge's exercise of discretion unless it is shown that he exercised his discretion wrongly in principle or perversely on the facts
- In setting aside a regular judgment the court considers whether there is a defence raising a triable issue, whether there is justification for the delay, and whether the plaintiff can be compensated by costs; to deny a party a hearing should be the last resort
- A process server who fails to effect personal service may affix documents on the door of the chambers, but cannot without leave of the court resort to postage as a substituted mode of service
Court orders
#- 1.The appeal is allowed with costs to the respondents
- 2.The interlocutory judgment entered on 1st February 2013 is set aside
- 3.The order dismissing the appellants' application to set aside the judgment is substituted with one allowing that application
- 4.The appellants are granted seven days from the date of the decision to file a reply to the defence and a defence to counter-claim
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 428 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal as of right against the exercise of discretion under Order 10 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shiloya v Vintage Africa Ltd t/a Sense of Africa (Cause E311 of 2024) [2025] KEELRC 348 (KLR)[2025] KEELRC 348 (KLR)13 Feb 2025applied
- Njoroge v Kenya Electricity Transmission Company Limited (Environment and Land Constitutional Petition 2 of 2022) [2023] KEELC 501 (KLR)[2023] KEELC 501 (KLR)2 Feb 2023applied
- Kenya Power & Lighting Co Ltd v Abdulhakim Abdulla Mohamed & another [2017] KECA 527 (KLR)[2017] KECA 527 (KLR)11 May 2017
- Aftraco Limited v Telkom Kenya Limited[2017] KEHC 9831 (KLR)13 Jan 2017
- African Cotton Industries Ltd v Rural Development Services Limited [2015] KEELC 395 (KLR)[2015] KEELC 395 (KLR)25 May 2015
- MARGARET MWIHAKI WANJAU v JOSEPH MUIRURI MUGO[2015] KEHC 2843 (KLR)16 Apr 2015
- LUCY WAITHERA KIMANGA & 2 others v JOHN WAIGANJO GICHURI[2015] KEHC 6120 (KLR)11 Mar 2015
- PRILSCOT COMPANY LIMITED v MONICA HEHO[2015] KEHC 6904 (KLR)23 Jan 2015
Cite this brief
#Cite this brief
Caselaw, "Bai Lin (K) Limited & 2 others v Zingo Investments Limited & another [2016] KECA 83 (KLR)", Case Analysis (2016). Civil Appeal No. 12 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/83/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.