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Court of AppealAllowedCivil Appeal 103 of 1984

Chemwolo & another v Kubende (Civil Appeal 103 of 1984) [1986] KECA 87 (KLR)

Court of Appeal
30 October 1986
HPH.G. PlattJGJ.M. GachuhiFAF.K. Apaloo
4,096 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that default judgments can be set aside whenever there is a real case to try, even after a late response to court summons.

What this practically means

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Executive summary

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The High Court (Mbaya J) refused on March 28, 1984 to set aside an interlocutory judgment in default of appearance entered against Philip Keipto Chemwolo and Mumias Sugar Company Limited in a personal injury claim by Augustine Kubende arising from a June 1982 road accident. The defendants entered appearance about a month late, having routed the summons through their insurer, Lion of Kenya Insurance Company Limited, and its advocates. The judge found no reasonable explanation for the default and, relying on Chemwolo's conviction for careless driving, held that not even a prima facie case of contributory negligence could be established. Allowing the appeal, the Court of Appeal held that the discretion under Order 9A Rule 10 is unconditional, the primary concern being whether triable issues and merits exist which ought to go to trial. Although section 47A of the Evidence Act makes the conviction conclusive evidence of carelessness, a triable issue of contributory negligence arose from the plaintiff's alleged high speed and failure to wear a crash helmet, and this could affect liability and quantum. The Court also found the delay was reasonably explained by the routing of the summons and the short period allowed. The ruling of the High Court was set aside, the default judgment was set aside with costs of the application and thrown away costs, and remaining costs in the High Court were to abide the event. Platt JA wrote the leading judgment; Gachuhi and Apaloo JJA concurred in separate opinions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court judge misdirected himself in refusing to set aside the interlocutory judgment entered in default of appearance under Order 9A Rule 10 of the Civil Procedure Rules
  2. 2.Whether a triable issue of contributory negligence arose notwithstanding the first defendant's conviction for careless driving
  3. 3.Whether the defendants offered a reasonable explanation for the delay of about four weeks in entering appearance

Key legal issues

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01

Test for setting aside a default judgment under Order 9A Rule 10

Holding

The discretion is unlimited and unconditional; the main concern is to do justice between the parties, and where a regular judgment has been entered the applicant must show a prima facie defence raising triable issues.

Reasoning

The Court adopted Harris J's formulation in Kimani v McConnell as adopted in Patel v EA Cargo Handling Services, and Lord Atkin's speech in Evans v Bartlam, that the discretion is unconditional and the essential question is whether there are merits to be tried. An applicant need not satisfy a rigid rule of reasonable explanation; the reason for the default is merely one relevant factor in the exercise of the discretion.

p. 3
02

Effect of a criminal conviction on a plea of contributory negligence

Holding

Although the conviction is conclusive evidence of carelessness under section 47A of the Evidence Act, a triable issue of contributory negligence may still arise if the plaintiff was himself careless, affecting liability and quantum.

Reasoning

The learned judge erred in treating the record of the traffic case as the final position in the civil suit and in concluding no prima facie case of contributory negligence could be established. Evidence emerges differently in civil trials, both parties to an accident may be convicted of careless driving, and the degree of apportionment of blameworthiness is a matter for trial.

p. 4
03

Explanation for the delay in entering appearance

Holding

The defendants did not ignore the summons; the summons had been routed through their insurer and its advocates, and the ten days allowed for defendants in Western Kenya was too short. The judge's finding of no reasonable explanation was a misdirection.

Reasoning

The correspondence since August 1983 had been with Daly & Figgis on behalf of Lion of Kenya Insurance Company Limited. Had plaintiff's counsel enquired whether those advocates would accept service, the delay would have been avoided. The judge, had he considered these facts, could not have concluded that no explanation had been shown for the failure to enter appearance in time.

p. 4
04

Duty of advocates regarding acceptance of service and notification

Holding

An advocate who has corresponded with the other side should, unprompted, obtain and communicate instructions to accept service of process; equally, plaintiff's counsel should enquire whether defendant's advocates have instructions to receive process.

Reasoning

Gachuhi JA observed that where an advocate has had an exchange of correspondence with the other side, he should notify the other side that he has instructions to accept service on behalf of his client, or alternatively demand a copy of the plaint or search the court file and enter appearance to safeguard the client's interests. He could not understand the rush by the plaintiff while limitation was not running out.

p. 5

Legal principles established

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  • The discretion to set aside a judgment entered in default of appearance is unconditional and its principal concern is whether there are merits which ought to be tried.
  • A criminal conviction under section 47A of the Evidence Act is conclusive evidence of guilt in civil proceedings, but it does not extinguish a triable issue of contributory negligence against the plaintiff.
  • An appellate court will not lightly interfere with the exercise of judicial discretion unless it is shown the judge misdirected himself and thereby arrived at a wrong decision.
  • Equity favours that blunders and defaults be remedied by payment of costs rather than by shutting a party out of a hearing on the merits.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court set aside
  3. 3.Judgment by default set aside with costs of the application and all thrown away costs
  4. 4.Costs of the appeal in the Court of Appeal and in the High Court in the matter of the application to set aside the default judgment awarded to the appellants
  5. 5.Remaining costs in the High Court to abide the event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HP
majority

Wrote the judgment

Platt JA wrote the leading judgment. He reviewed the principles for setting aside default judgments under Order 9A Rule 10, drawing on Patel v East African Cargo Handling Services and Evans v Bartlam. He held the trial judge misdirected himself in finding no triable issue of contributory negligence from the traffic proceedings and in finding no reasonable explanation for the delay, and would allow the appeal.

Considering these facts in the light of the ruling, it is clear that the learned judge misdirected himself. It is not a case where the defendants ignored the summons.p. 4
JG
concurring

Wrote the judgment

Gachuhi JA agreed with the judgment of Platt JA that the judge ought to have set aside the default judgment, adding that appearance may be entered at any time before entry of judgment and that there are triable issues which should not be shut out.

I also agree with the judgment prepared by Platt JA that the judge ought to have rightly exercised his discretion in setting aside the ex-parte judgment.p. 5
FA
concurring

Wrote the judgment

Apaloo JA agreed the default judgment should be set aside, holding there was a triable issue on contributory negligence, that the delay was not unreasonable and was explained, and that costs rather than denial of a hearing on the merits was the proper response to blunders.

I agree that the judgment entered against the appellant in default of appearance should be set aside. Like Platt JA I am unable to agree that it was competent for the learned judge to merely peruse the record of the criminal trial and conclude that a prima facie case on contributory negligence cannot be established.p. 5
On appeal from
High Court at Nairobi
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (Civil Appeal 103 of 1984)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.
p. 3Unconditional discretion to set aside default judgment (Lord Atkin, adopted)
In the present case there was a triable issue in contributory negligence which would affect the quantum of damages.
p. 4Triable issue of contributory negligence despite conviction
The ruling of the High Court is set aside, and there will be substituted therefor an order setting aside the judgment by default with costs and of the application and all thrown away costs. The remaining costs in the High Court will abide the event.
p. 5Final orders / disposition
The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.
p. 6Equity approach to defaults (Apaloo JA)
Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.
p. 6Blunders should not shut out a party from a hearing on the merits

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chemwolo & another v Kubende (Civil Appeal 103 of 1984) [1986] KECA 87 (KLR)", Case Analysis (1986). Civil Appeal 103 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/87/eng@1986-10-30

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