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Court of AppealDismissedCourt of Appeal, Nairobi (Civil Appeal)· [1987] KECA 75 (KLR)

Bouchard International (Services) Ltd v Philip Nzioki M’mwereria [1987] KECA 75 (KLR)

Court of Appeal of Kenya
14 October 1987
HPH.G. PlattFAF.K. ApalooJMJ.R.O. Masime
7,493 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal, Nairobi, against Porter J's decision setting aside the ex parte judgment of Aganyanya J, given after formal proof when the defendant and his advocates failed to attend trial of a road-accident claim for vehicle repair charges of Kshs 21,460. The defendant's vehicle, a Canter registration KRH 159, collided with the plaintiff company's car driven by Mrs Gonsalves; the defence denied that the defendant was the driver. Aganyanya J entered ex parte judgment on the plaintiff's 'unchallenged' evidence, which included ownership records from the Registrar of Motor Vehicles. Porter J set the judgment aside on terms, holding there was 'a danger that justice has not been done' since no evidence identified the driver. Platt JA, writing the leading judgment with which Masime Ag JA agreed, held that ownership was never pleaded, so the Barnard v Sully presumption could not be founded on the wrongly admitted ownership evidence; that a judge hearing a setting-aside application is duty bound to review the whole situation and does not sit in appeal over a co-ordinate judge; and that the discretion under Order IXB Rule 8 is wide but judicial. The majority dismissed the appeal with costs, directed the suit to proceed to trial, and ordered the respondent to pay the costs of the application before Porter J. Apaloo JA dissented, reasoning that the unrebutted ownership presumption discharged the plaintiff's burden and that Porter J misdirected himself on the law.

Key legal issues

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01

Scope of the discretion to set aside an ex parte judgment under Order IXB Rule 8

Holding

The discretion is wide and must be exercised judicially; a judge setting aside an ex parte judgment must survey the whole situation and is not overruling a co-ordinate court by doing so.

Reasoning

The Court reviewed Shah v Mbogo, Mbogo v Shah, Kimani v McConnell, Patel v EA Cargo Handling and Evans v Bartlam, concluding that the discretion is unconditional and unfettered but must be used with reason. A regular judgment will not usually be set aside unless there is a prima facie defence. Porter J considered the defence that the defendant was not driving, and was entitled to ensure justice was done.

p. 4
02

Whether the ownership presumption (Barnard v Sully) could apply on the pleadings

Holding

No. Ownership was not pleaded; the plaint raised only the issue of whether the defendant drove the vehicle, so the foundation for the presumption was never laid.

Reasoning

The Court held that proof of ownership only founds the presumption where ownership and agency are pleaded, and that evidence of ownership lay outside the pleadings and was wrongly admitted. The plaintiff could not widen its net after judgment without amending the plaint.

p. 3
03

Interference with discretionary decisions on appeal

Holding

The Court of Appeal should not interfere with a judge's discretion unless clearly satisfied he was wrong or applied a wrong principle; it may examine the facts anew by way of review.

Reasoning

Relying on Lord Wright in Evans v Bartlam, the Court held that an interlocutory discretionary order is not immune from supervision, but the appellate court must be satisfied the judge was wrong. On these facts the majority found no misdirection: Porter J properly considered the prima facie defence and the justice of the matter.

p. 5

Legal principles established

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  • A judge hearing an application to set aside an ex parte judgment is duty bound to review the whole situation to ensure justice is done; he is not sitting as an appellate court over the judge who gave the ex parte judgment.
  • The discretion to set aside an ex parte judgment exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays justice.
  • An appellate court will not interfere with a judge's discretion unless clearly satisfied he was wrong or that he applied a wrong principle.
  • If a plaintiff wishes to rely on the presumption that the owner or his servant or agent drove the vehicle, ownership must be pleaded; otherwise the only issue raised is whether the defendant himself drove the car.
  • The presumption of agency arising from ownership is not strong, and permission to drive alone does not impose liability on the owner.

Court orders

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  1. 1.The appeal to the Court of Appeal is dismissed with costs
  2. 2.The suit will proceed to trial
  3. 3.Porter J's order setting aside the ex parte judgment stands
  4. 4.The defendant/respondent will pay the costs of the application before Porter J
On appeal from
High Court of Kenya
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Bouchard International (Services) Ltd v Philip Nzioki M’mwereria [1987] KECA 75 (KLR)", Case Analysis (1987). Court of Appeal, Nairobi (Civil Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/75/eng@1987-10-14

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