Paola Tarlazzi & another v Roberto Ciavolella [2014] KEELC 79 (KLR)
The bottom line
#Kenya's High Court refused to overturn a default judgment because the defendant admitted the debt and never filed a Defence in time.
What this practically means
#Executive summary
#Key legal issues
#Whether the explanation for failure to file a Defence justified setting aside regular default judgment
No - the explanation that the advocate was engrossed in other applications was not plausible, and the judgment entered on service was regular
The Defendant admitted service and entry of appearance by his advocates, who filed applications but no Defence. Default judgment on a liquidated demand under Order 10 Rule 4 was therefore regular. The court retains discretion to set aside a regular judgment only where the proposed Defence is reasonable and raises triable issues, which was not demonstrated here.
Whether the Kenyan court had jurisdiction over a claim founded on an agreement drawn and signed in Italy
Yes - the Defendant was served within Kenya and failed to show that Italy is a clearly more appropriate forum or that the suit is oppressive or vexatious
Applying private international law principles from Halsbury's Laws of England and St Pierre and Spiliada, jurisdiction in personam attaches upon service within the jurisdiction. The Defendant offered no evidence of a parallel foreign proceeding, an exclusive foreign jurisdiction clause, or oppression, and the agreement was to be performed in Kenya through transfer of the Malindi villas in default of repayment.
Whether the draft Defence raised triable issues
No - the Defence admitted receipt of Euro 125,000 and the agreement of 27th September 2013, leaving only a jurisdiction objection which failed
Paragraph 3 of the draft Defence admitted the existence of the agreement, and the Defendant admitted receiving Euro 125,000 and issuing a cheque as security. The complaint that the villas belong to Melville Limited was immaterial because the default judgment was for payment of Euro 130,000, not transfer of the villas; once the debt is recovered, the alternative prayer for transfer becomes moot.
Legal principles established
#- In exercising its discretion to set aside a regular default judgment, the trial court should consider whether the defence or draft defence is reasonable and raises triable issues
- A court has jurisdiction in actions in personam over a person served with originating process within its territory, regardless of domicile, residence or nationality of the parties
- The burden is on a defendant seeking a stay on forum grounds to establish that another available forum is clearly or distinctly more appropriate
Court orders
#- 1.Dismissal of the Defendant's application dated 5th September 2014
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Civil Procedure Act and Civil Procedure Rules, Order 10 Rule 4 (original civil jurisdiction; suit on a liquidated demand)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paola Tarlazzi & another v Roberto Ciavolella [2014] KEELC 79 (KLR)", Case Analysis (2014). Defendant's Application dated 5th September 2014 (suit over Villas 7 and 8, Portion No. 1371 Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/79/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.