Mugunga General Stores v Pepco Distributors Ltd [1987] KECA 68 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that defendants must put real evidence of a defence on record to set aside summary judgment.
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 Court of Appeal could interfere with Porter, J's exercise of discretion in refusing to set aside the ex parte summary judgment
- 2.Whether the defendant had a good defence on the record warranting leave to defend
- 3.Whether the cause of action in the supporting affidavit (dishonoured cheques) differed from that in the plaint (breach of contract by non-payment)
- 4.Whether an indicated intention to amend the defence was a sufficient basis to set aside the judgment
Key legal issues
#Appellate interference with discretionary decisions
The Court of Appeal cannot interfere with the High Court's discretion absent error of principle or perversity; none was exhibited here.
Applying Shah v Mbogo [1967] EA, the court held that Porter, J principally acted on the principle that, weighing the reason for the delay, there was no merit in the defence. Since a mere denial is inadequate and no defence was on the record by affidavit or otherwise, the judge's exercise of discretion disclosed no fault of principle and was not perverse, so the appellate court could not interfere.
Nature of the cause of action - plaint vs supporting affidavit
The cause of action is that pleaded in the plaint, namely breach of contract by non-payment; the affidavit's reference to dishonoured cheques did not disclose a different cause of action on these facts.
The appellant argued the affidavit founded the claim on dishonoured cheques while the plaint founded it on breach of contract through non-payment, contending these were different causes of action. The court accepted the abstract possibility of two distinct causes of action but held the analysis was not borne out here: the plain cause of action on the plaint was breach of contract in non-payment, evidenced by the cheques given in payment for goods sold and delivered.
Indicated but unparticularised amendment of defence
A bare indication that the defence would be amended, without placing the proposed amendment before the judge, could not assist the defendant.
Porter, J was told the defence - a mere general traverse - would be amended, but the proposed amendment and the reasons for it were never placed before him. The court held the judge could not judge the effect of such an amendment, so it was open to him to find no useful purpose would be served by setting aside the regular ex parte judgment, particularly given the unexplained lateness of the defendant.
Merits and the power to revoke judgment
While a court retains power to revoke a judgment obtained by failure to follow procedure before judgment on the merits, where there are no merits that coercive power stands unabridged.
Citing Lord Atkin in Evans v Bartlam, the court acknowledged the principle that until judgment is pronounced on the merits or by consent, the court retains power to revoke an expression of its coercive power obtained by procedural default. However, the corollary applies: where the defence lacks merit, the judgment regularly obtained stands, and setting aside would serve no useful purpose.
Legal principles established
#- An appellate court will not interfere with a judge's exercise of discretion on a summary judgment/set-aside application unless the judge acted wrongly in principle or perversely on the facts
- A mere general denial is not a sufficient defence to a summary judgment application; the defendant must give some reason why the money is not owed
- On a summary judgment application under order XXXV, the defendant must show by affidavit, oral evidence or otherwise that he should have leave to defend
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal against the exercise of discretion of the High Court (order XXXV of the Civil Procedure Act regime)
Relief refused
#Setting aside the ex parte summary judgment and staying execution
The defendant had put no defence on the record, gave no reason for the delay, and a bare intention to amend the defence could not be evaluated on the merits
Costs
The appeal was dismissed with costs (costs of the appeal to the plaintiff/respondent)
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.
The appeal will be dismissed with costs.
the duty of this court on an appeal against the exercise of that discretion, is not to interfere unless the judge has exercised his discretion wrongly in principle or perversely on the facts of the case
First of all a mere denial is not a sufficient defence in this type of case. There must be some reason why the defendant does not owe the money.
In this case the defendant had put no defence upon the record by affidavit or otherwise. The ex parte judgment was regularly ordered by Schofield, J as a consequence.
But, on the contrary, where there are no merits, the coercive power will stand unabridged.
Issues in the judgment
#The judgment notes an internal inaccuracy in the plaintiff's supporting affidavit regarding the details of the cheques, though it found the position now clear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugunga General Stores v Pepco Distributors Ltd [1987] KECA 68 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/68/eng@1987-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.