Bouchard International (Services) Ltd v Philip Nzioki M’mwereria [1987] KECA 75 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Porter J correctly exercised his discretion under Order IXB Rule 8 of the Civil Procedure Rules in setting aside the ex parte judgment of Aganyanya J
- 2.Whether a judge entertaining an application to set aside an ex parte judgment improperly sits as an appellate court over the judge who gave the ex parte judgment
- 3.Whether evidence of ownership of the offending vehicle was properly admitted and whether the presumption arising from ownership (Barnard v Sully) could found liability given the state of the pleadings
- 4.Whether the appeal court should interfere with the exercise of the judge's discretion
Key legal issues
#Scope of the discretion to set aside an ex parte judgment under Order IXB Rule 8
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.
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.
Whether the ownership presumption (Barnard v Sully) could apply on the pleadings
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.
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.
Interference with discretionary decisions on appeal
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.
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.
Legal principles established
#- 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
#- 1.The appeal to the Court of Appeal is dismissed with costs
- 2.The suit will proceed to trial
- 3.Porter J's order setting aside the ex parte judgment stands
- 4.The defendant/respondent will pay the costs of the application before Porter J
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment reviewing the pleadings and evidence, holding that Porter J was duty bound to review the whole situation when exercising the discretion to set aside an ex parte judgment, and that the presumption in Barnard v Sully could not be invoked because ownership was never pleaded. He would dismiss the appeal.
In my opinion Porter J acted perfectly properly and I would dismiss the appeal with costs and direct that the suit proceed to trial.p. 5
Wrote the judgment
Dissented: proof of ownership raised a rebuttable presumption that the respondent or his servant or agent drove the vehicle; Porter J misdirected himself on the law, wrongly sat in judgment on a co-ordinate court's decision, and failed to consider the respondent's evasive conduct. He would allow the appeal and restore the ex parte judgment.
But I would for my own part allow the appeal, set aside the order of Porter J and restore the judgment of Aganyanya J with costs here and below.p. 9
Wrote the judgment
Wrote a separate concurring judgment agreeing with Platt JA that Porter J properly exercised his statutory discretion under Orders 9A and 9B of the Civil Procedure Rules, noting the shortcomings in the pleadings on ownership and vicarious liability, and would dismiss the appeal with costs.
For my part I agree with Platt JA that Porter J was right in exercising his discretion to set aside the ex parte judgement of Anganyanya J. I would dismiss this appeal and order that the case proceed to trial with costs.p. 10
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court
Relief refused
#The appellant's prayer to restore the ex parte judgment of Aganyanya J and set aside Porter J's order
The majority held Porter J acted properly in exercising his discretion to set aside the ex parte judgment so that the issue of the driver's identity could go to trial
Costs
The appeal is dismissed with costs; Porter J's order stands except that the defendant/respondent will pay the costs of the application before Porter J.
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 to this court is dismissed with costs, and the suit will proceed to trial. Porter, J's order stands except that the defendant/respondent will pay the costs of the application before Porter, J.
This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the course of justice.
It was an unconditional unfettered discretion, although it was to be used with reason, and so a regular judgment would not usually be set aside unless the court was satisfied that there was a defence on the merits
Indeed it is the great error of these proceedings that evidence of ownership was wrongly let in which has now confused the situation.
It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong.
Where a plaintiff in an action for negligence proves that damage has been caused by the defendant's motorcar, the fact of ownership of the motor-car is prima facie evidence that the motor car, at the material time, was being driven by the owner, or by his servant or agent.
Issues in the judgment
#The judgment records the accident date inconsistently in the two judgments: the leading judgment says June 13, 1980 while the dissent says June 23, 1980.
The plaintiff's name is never stated as a party name in the judgment; it is described only as 'a limited liability company employing the husband of Mrs Natalina Gonsalves', making the full case title uncertain.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bawan Limited & another v Kenya Urban Roads Authority & another (Environment and Land Case 375 of 2015) [2026] KEELC 3658 (KLR)[2026] KEELC 3658 (KLR)15 Jun 2026
- Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2025] KEELC 7980 (KLR)[2025] KEELC 7980 (KLR)19 Nov 2025applied
- Kisoso v Omoi & another; County Government of Kajiado & another (Interested Parties) (Environment and Land Appeal E010 of 2024) [2025] KEELC 6958 (KLR)[2025] KEELC 6958 (KLR)9 Oct 2025applied
- Beshai Tropical Gardens Limited v Nyangori & 2 others (Environment & Land Case 130 of 2016) [2025] KEELC 3982 (KLR)[2025] KEELC 3982 (KLR)15 May 2025applied
Cite this brief
#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.