Stephen Wanyee Roki v K-Rep Bank Limited & 2 others [2018] KECA 643 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can set aside default judgments where a defence raises real issues, even after delays caused by a lawyer's negligence.
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 learned judge of the High Court failed to exercise his discretion judiciously in setting aside the default judgment entered against the 2nd respondent and extending time to file a defence and counter-claim.
- 2.Whether the 2nd respondent tendered a satisfactory explanation for the delay in filing and prosecuting the application to set aside the default judgment.
- 3.Whether the change of advocates by the 2nd respondent was a ploy to hoodwink the court and whether the alleged delay was inordinate.
Key legal issues
#Interference with the trial judge's discretion in setting aside a default judgment
The Court of Appeal declined to interfere because the learned judge addressed himself to all the facts and evidence before setting aside the default judgment and extending time.
The Court restated the Mbogo v Shah principle that an appellate court does not interfere with a judge's exercise of discretion unless the judge misdirected himself and thereby reached a wrong conclusion. It found the judge had considered the chronology of the proceedings, the explanation for the delay in prosecuting the application, and the draft defence and counter-claim, which raised triable issues, and so exercised his discretion judiciously.
Explanation for delay and the role of an advocate's negligence
The delay in prosecuting the application to set aside was attributable to the negligence of the 2nd respondent's advocates, and the party should not be condemned unheard for its advocate's mistake.
The 2nd respondent acknowledged service on its then advocates, who failed to enter appearance or prosecute the application. The Court gave the 2nd respondent the benefit of the doubt, holding the explanation for the delay covered the period from the default judgment until the appointment of new advocates, and that the factors considered had to align with the overriding objective of just, expeditious, proportionate and affordable resolution of disputes.
Factors governing setting aside default judgments under Order 10 rule 11
The court has a wide, unfettered discretion under Order 10 rule 11 of the Civil Procedure Rules, 2010 to set aside a default judgment where the draft defence raises triable issues, guided by the Patel v E.A. Cargo Handling principles.
Counsel relied on Order 10 rule 11 and the Patel and Chemwolo authorities, which the Court adopted: unless and until judgment has been pronounced on the merits or by consent, the court retains power to revoke an ex parte judgment obtained by failure to follow procedure, and the main concern is to do justice to the parties. The draft defence and counter-claim raised triable issues.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a judge unless it is satisfied that the judge misdirected himself and as a result arrived at a wrong conclusion.
- Setting aside a default judgment is an equitable remedy available only at the discretion of the court, not a right of a party.
- In considering an application to set aside a default judgment, the court's main concern is to do justice to the parties, on such terms as may be just, unfettered by self-imposed conditions, in tandem with the overriding objective of civil litigation.
Court orders
#- 1.Appeal dismissed as devoid of merit.
- 2.Each party to bear its own costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 1 of 2011
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling of the High Court in Civil Suit No. 1 of 2011 (first appeal against exercise of judicial discretion).
Relief refused
#Restoration of the default judgment entered against the 2nd respondent and setting aside of the High Court ruling.
The Court was satisfied that the learned judge considered all the facts and evidence before exercising his discretion, and no basis for interference was shown.
Costs
Each party shall bear its own costs of the appeal.
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.
It is now well settled that this Court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge misdirected himself and as a result arrived at a wrong conclusion.
It is trite that setting aside of a default judgment is not a right of a party but an equitable remedy that is only available to a party at the discretion of the Court.
In the circumstances, we find that this appeal is devoid of merit and dismiss it. Each party shall bear its own costs of the appeal.
Issues in the judgment
#The judgment refers to 'the reasons for the delay in filing the appeal' where the context concerns the delay in filing the application to set aside the default judgment, suggesting a drafting error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Wanyee Roki v K-Rep Bank Limited & 2 others [2018] KECA 643 (KLR)", Case Analysis (2018). Civil Appeal No. 268 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/643/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.