Joseph Ngunje Waweru v Joel Wilfred Ndiga [1983] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts have wide discretion to set aside default judgments on just terms, without needing 'sufficient cause'.
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 misdirected himself in law by requiring the appellant to show sufficient cause under order IXA rule 10 to set aside the ex parte judgment
- 2.Whether the appellant was given reasonable notice of the setting down of the suit for assessment of damages as required by order IXB rule 1(2)
- 3.Whether loss of use of the vehicle was properly claimed and awarded as general damages
- 4.Whether the appellant had a defence to the respondent's plaint
- 5.Whether this Court should interfere with the judge's exercise of discretion
Key legal issues
#Whether 'sufficient cause' must be shown to set aside an ex parte judgment under order IXA rule 10
No. The requirement of 'sufficient cause' belonged to the repealed order IX rule 24, which dealt with non-attendance at hearings; the modern rules confer an unfettered discretion to set aside judgments taken in default of appearance or defence, on such terms as are just.
The former order IX was split by later Legal Notices into orders IX, IXA and IXB. Rule 24 of the old order, requiring sufficient cause for a defendant 'prevented from appearing' (i.e. physically attending), was replaced, and both order IXA rule 10 and order IXB rule 8 now give the court a wide, unfettered discretion on 'such terms as are just'. The judge's reliance on 1951, 1960 and 1962 authorities decided under the old 'sufficient cause' regime was a misdirection which might have led to a different decision.
Whether publication of the daily cause list discharges a plaintiff's duty under order IXB rule 1(2) to give a defendant who has appeared reasonable notice of the setting down for assessment of damages
The Court reserved the question for fuller argument but, on the facts, was not satisfied that the appellant had the notice required by the rule.
The respondent contended that circulation of the Nyeri High Court daily cause list for March 29, 1982, advertising the formal proof fixture, gave four clear days' notice. Potter JA observed the question may one day engage the serious attention of the court, but for the purposes of the appeal was not satisfied that the defendant had notice as required, an added reason for allowing the appeal.
Whether loss of use of the vehicle was properly awarded as general damages
No. Loss of use over a defined period should have been claimed as special damages and strictly proved with particulars; no particulars of loss were set out in the plaint.
The plaint pleaded loss of use as general damages without particulars. At the formal proof hearing the plaintiff said he had been deprived of the vehicle from June 1981 to January 1982 and had 'suffered loss'. The judge awarded Kshs 10,000 with no evidential basis: the Court queried how a loss of Kshs 10,000 in six months, roughly Kshs 400 per week, could be sustained without strict proof.
Whether the appellant had a defence to the plaint warranting setting aside the judgment
Yes. The appellant annexed a draft defence and counterclaim denying the alleged second oral agreement on repairs and counterclaiming for the balance of the purchase price, so it was just to enable him to defend the suit.
The purpose of the discretionary jurisdiction to set aside ex parte judgments is to do justice between the parties. The appellant explained his failure to file a defence (failure to instruct on the defence and a three-week business trip to Mombasa), and it would not be just for him to suffer for that oversight, particularly given the defects in the notice and the damages assessment. A draft defence and counterclaim was before the court.
Legal principles established
#- Order IXA rule 10 confers on the court an unfettered discretion to set aside or vary an ex parte judgment upon such terms as are just, with no requirement of showing sufficient cause.
- The test for setting aside or varying a judgment under the rule is whether, on all the facts and circumstances and the respective merits of the parties, it would be just and reasonable to do so, if necessary upon terms.
- An appellate court will not interfere with a judge's exercise of discretion unless there has been a misdirection leading to a wrong decision, or a manifestly wrong decision leading to injustice.
- Under order IXB rule 1(2), a plaintiff must give reasonable notice to every defendant who has appeared before setting down the suit for assessment of damages.
- Loss of use of property claimed over a period must be pleaded as special damages and strictly proved.
Court orders
#- 1.Appeal allowed
- 2.Ruling and order of the High Court set aside
- 3.Ex parte judgment and assessment of damages of the High Court set aside
- 4.Nyeri Civil Case No 193 of 1981 remitted to the High Court for trial
- 5.Appellant granted an extension of time of 30 days from delivery of the judgment to file a defence and counterclaim
- 6.Appellant awarded the costs of the appeal and of the hearing of the chamber summons
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Potter JA delivered the lead judgment. He held that the learned judge misdirected himself on the law applicable to order IXA rule 10 by importing a 'sufficient cause' requirement from the repealed order IX rule 24, when the modern rule confers an unfettered discretion to set aside an ex parte judgment on such terms as are just. He further found that the appellant had no reasonable notice of the formal proof hearing and that loss of use of the vehicle should have been pleaded and proved as special damages. He would allow the appeal, set aside the ex parte judgment and assessment, and remit the case for trial.
Order IXA rule 10 as now in force empowers the court to set aside or vary an ex parte judgment upon such terms as are just, and there is no requirement of showing sufficient cause.p. 2
Wrote the judgment
Hancox JA wrote separately, tracing the history of the former order IX rules 10 and 24 and the cases decided under them. He concluded that the 'sufficient cause' language belonged to the old rule 24 governing non-attendance at hearings, and that no such requirement was ever attached to applications to set aside judgments in default of appearance or defence, such as those now governed by order IXA rule 10. Reading a sufficient cause requirement into the present rule would wrongly fetter the court's very wide discretion. He agreed the appeal should be allowed.
does not provide any warrant for reading into the present rule a requirement of sufficient cause, which would have the effect of fettering the court's very wide discretion to set aside under order IXA rule 10p. 5
- On appeal from
- High Court at Nyeri
- Civil Case No 193 of 1981
- Jurisdiction invoked
- Appeal to the Court of Appeal against the ruling and order of the High Court (first appeal as of right under the applicable appellate statutory framework; the judgment does not cite the specific provision)
Relief refused
#Recognition of the damages award of Kshs 10,000 for loss of use
Loss of use should have been pleaded and strictly proved as special damages, not awarded as general damages without particulars
Costs
The appellant was awarded the costs of this appeal and of the hearing of the chamber summons which was the subject 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.
I would allow this appeal, set aside the ruling and order of the High Court, set aside the ex parte judgment and assessment of damages of the High Court, and order that Nyeri Civil Case No 193 of 1981 be remitted to the High Court for trial, the appellant being granted an extension of time of 30 days from the date of delivery of this judgment in which to file a defence and court counterclaim.
Order IXA rule 10 as now in force empowers the court to set aside or vary an ex parte judgment upon such terms as are just, and there is no requirement of showing sufficient cause.
1. The court has an unfettered discretion to do justice between the parties. 2. It may be just on the facts of the particular case to avoid hardship or injustice arising from inadventure or mistake even though negligent, but the discretion should not be exercised to assist anyone to delay the course of justice.
This court will not interfere with the judge's exercise of his discretion unless there has been a misdirection leading to a wrong decision or a manifestly wrong decision leading to injustice.
"Whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed."
And that question is whether the duty of a plaintiff to give notice of setting down to a defendant is discharged by the timeous publication by the court of a cause list advertising the fixture.
does not provide any warrant for reading into the present rule a requirement of sufficient cause, which would have the effect of fettering the court's very wide discretion to set aside under order IXA rule 10
Issues in the judgment
#The respondent's counsel's name is rendered inconsistently in the judgment ('Mr Muchemi' and 'Muchemi (Ole Kaparo & Waweru)'), and the two East African case names for Mitha v Ladak and Pithon Maina v Mugiria are spelled inconsistently within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ngunje Waweru v Joel Wilfred Ndiga [1983] KECA 58 (KLR)", Case Analysis (1983). Civil Appeal from Nyeri Civil Case No 193 of 1981. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/58/eng@1983-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.