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ELCAllowedELC No. 745 of 2011· [2014] KEELC 346 (KLR)

Global Ten Investment Ltd v Kanorero River Farm Limited & another [2014] KEELC 346 (KLR)

High Court of Kenya, Environment and Land Division
23 May 2014
1,947 words in judgment
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The bottom line

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Kenya's High Court set aside a default judgment on a counter-claim, confirming Deputy Registrars cannot enter such judgments and related claims must be heard together.

What this practically means

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Executive summary

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The applicant, Global Ten Investment Ltd (plaintiff), moved the Court under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, seeking to set aside an interlocutory judgment entered in default of defence to the 1st Defendant's counter-claim, and to have its Reply to Defence and Defence to Counter-Claim admitted out of time. The suit concerned a claimed refund of Kshs. 9,000,000 arising from breach of a sale agreement over LR No. 209/14310; the 1st Defendant counter-claimed for about Kshs. 26,810,200 arising from the same agreement. The 1st Respondent opposed, arguing the judgment was lawful and the application was made after undue delay and without security. Gacheru J held that the plaintiff's claim and the counter-claim were indivisible, both arising from the same sale agreement, so that default judgment on the counter-claim would render the plaint irrelevant. The Court further held, following Kenneth Njagi Njiru v Housing Finance Co. Ltd, that the Deputy Registrar lacked jurisdiction to enter judgment on a counter-claim. Applying the tests in Shanzu Investment Ltd (defence on merits, prejudice, delay), the Court found the applicant's defence raised triable issues and that execution of the decree would cause prejudice contrary to the overriding objective. The Notice of Motion dated 21st August 2013 was allowed entirely, with costs to the applicant.

Key legal issues

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01

Whether default judgment on a counter-claim should be set aside where it arises from the same transaction as the pending plaint

Holding

The judgment was set aside because the plaintiff's claim and the counter-claim relate to the same sale agreement, are indivisible, and entry of interlocutory judgment would render the plaintiff's suit irrelevant.

Reasoning

The court found that both the plaintiff's claim for refund of Kshs. 9,000,000 and the 1st Defendant's counter-claim of Kshs. 26,810,200 arose from the same Sale Agreement over LR No. 209/14310. Following Nina Marie Ltd v Gatuma Holdings Ltd, the court held the two claims ought to be decided together; an interlocutory judgment on the counter-claim would effectively defeat the pending plaint and was entered irregularly.

p. 3
02

Whether the Deputy Registrar had jurisdiction to enter interlocutory judgment on a counter-claim

Holding

The Deputy Registrar had no jurisdiction to enter interlocutory judgment on a counter-claim.

Reasoning

The court adopted the reasoning of Kasango J in Kenneth Njagi Njiru v Housing Finance Co. Ltd, that the applicable order of the Civil Procedure Rules makes no provision for entry of judgment on a counter-claim, and held the same position applied to the interlocutory judgment entered on 4th May 2012 in this matter.

p. 3
03

Whether the applicant's defence to the counter-claim raised triable issues and whether setting aside would cause prejudice

Holding

The defence raised triable issues, and executing the decree would prejudice the applicant contrary to the overriding objective; the defence was deemed filed and served.

Reasoning

Applying the tests in Shanzu Investment Ltd v Commissioner of Lands (defence on merits, prejudice, explanation for delay) and Patel v E.A. Cargo Handlings Services Ltd, the court found the defence raised triable issues fit for trial. Execution of the Kshs. 26,810,200 decree against a party not heard would occasion prejudice contrary to Sections 1A and 1B of the Civil Procedure Act, so justice required setting aside the judgment.

p. 4

Legal principles established

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  • The discretion to set aside default judgment must be exercised judicially and upon reasons
  • A counter-claim closely related to the plaint is indivisible from it and default judgment should not be entered on such a counter-claim where the plaint is pending
  • The Deputy Registrar has no power to enter judgment on a counter-claim
  • Setting aside default judgment requires consideration of a defence on merits, prejudice and explanation for delay; a defence raising triable issues suffices

Court orders

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  1. 1.The Notice of Motion dated 21st August 2013 allowed entirely
  2. 2.The interlocutory judgment entered in default of defence to the counter-claim set aside
  3. 3.The applicant's Reply to Defence and Defence to Counter-Claim deemed duly filed and served
  4. 4.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Act, Chapter 21Sections 1A, 1B, 3A and 63(e)

Cases cited (7)

  • Kenya Commercial Bank Ltd vs Reuben Waweru D. Kigathi and Another
    High Court Civil Case No. 325 of 1999
  • Nina Marie Ltd vs Gatuma Holdings Ltd and another
    (2001) KLR
  • Kenneth Njagi Njiru versus Housing Finance Co. Ltd and another
    (2005) eKLR
  • Shanzu Investment Ltd vs the Commissioner of Lands
    Civil Appeal No. 100 of 1993
  • Patel vs E. A Cargo Handlings Services Ltd
    1974 EA 74
  • Tree Shade Motors Ltd vs D.T Dobie & Co. Ltd and Another
    Civil Appeal No. 38 of 1998
  • Credit Bank Ltd vs Barclays Bank of Kenya Ltd
    Civil Appeal No. 178 of 1998
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Global Ten Investment Ltd v Kanorero River Farm Limited & another [2014] KEELC 346 (KLR)", Case Analysis (2014). ELC No. 745 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/346/eng@2014-05-23

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