Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 158 of 2000

Express (Kenya) Limited v Manju Patel [2001] KECA 154 (KLR)

Court of Appeal of Kenya
29 June 2001
ASA.B. ShahKWKwachPhilip Kiptoo TunoiTunoi
2,676 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal held a company liable when its own security guards stole customer goods — and ignoring court papers sealed its fate.

What this practically means

#

Executive summary

#
The Court of Appeal at Nairobi (Shah, J.A.) dismissed an appeal against a ruling of Ole Keiwua, J. refusing to set aside an ex-parte judgment entered against Express (Kenya) Limited in favour of Manju Patel for Shs.4,893,512.80. The claim arose from a bailment: 49,000 gunny bags warehoused by the appellant were stolen in two burglaries in February 1996, committed by guards of Collingdale Security, a firm engaged by the appellant. Summons served on the appellant were forwarded to its insurance brokers, but no memorandum of appearance or defence was filed, and the appellant moved to set aside the judgment only after execution was levied. The court held that where service is proper, delay in entering appearance must be satisfactorily explained before a regular judgment can be set aside; neither the appellant nor the insurer offered any explanation, and the learned judge was right to criticise the insurer's silence. The appellant also failed to show merits: it admitted the theft by its own agents, and under Securicor v E.A. Drapers, Morris v C.W. Martin, United Manufacturing v Wafco and Kisumu Trading Stores, a principal is liable for theft by a servant acting in the course of employment, so the exemption clause did not assist. The respondent's valuation of the goods and her entitlement to a refund of storage charges were upheld. The appeal was dismissed with costs to the respondent.

Questions the Court framed

#

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

  1. 1.Whether the learned judge misdirected himself in declining to set aside the ex-parte judgment for non-explanation of the delay in entering appearance
  2. 2.Whether the appellant disclosed a defence on the merits sufficient to justify setting aside the regular judgment
  3. 3.Whether the appellant was vicariously liable for the theft of the bailed goods by the security guards of Collingdale Security engaged by it
  4. 4.Whether the value of the goods stolen was correctly assessed

Key legal issues

#
01

Explanation of delay before setting aside a regular ex-parte judgment

Holding

A regular judgment cannot be set aside on the mere say-so of the applicant; the delay must be plausibly explained, and neither the appellant nor the insurer offered any explanation.

Reasoning

The summons were properly served on the appellant, which forwarded them to its insurance brokers, but neither the appellant's affidavit nor the insurer explained the failure to enter appearance or file a defence. The learned judge was entitled to criticise the insurer for not coming forward. Absent any explanation, the discretion to set aside was properly exercised against the appellant.

p. 2
02

Vicarious liability of a bailee for theft by its security agents

Holding

The appellant was liable for the theft of the bailed goods by guards of Collingdale Security engaged by it, following Securicor, Morris v C.W. Martin and United Manufacturing Co v Wafco.

Reasoning

The bailment was for consideration and the warehouse was guarded by guards employed by Collingdale Security, an entity engaged by the appellant. The guards who stole the goods were the appellant's servants or agents; under the principle in Morris v C.W. Martin and the Wafco and Kisumu Trading Stores decisions, a principal is liable for theft or fraud by a servant acting or purporting to act in the course of employment, and the exemption clause did not avail because the theft was by a servant within the scope of employment.

03

Assessment of the value of the stolen goods

Holding

The respondent's valuation of Shs.97 per bag, supported by market quotations, was accepted, and she was entitled to a refund of storage charges paid for goods that were stolen.

Reasoning

The respondent deponed that she paid Shs.97 per gunny bag, valuing the stolen bags at Shs.4,753,000, and produced supplier quotations showing a market value of about Shs.94.65 per bag at the date of theft. The court also held she was entitled to a refund of storage charges since the goods were stolen while in the appellant's custody.

p. 4

Legal principles established

#
  • Where service of summons is proper, any delay in entering appearance must be satisfactorily explained before a regular ex-parte judgment can be set aside.
  • An applicant to set aside a regular judgment must show the merits of the defence by affidavit.
  • A bailee is vicariously liable where its servant or agent steals the goods entrusted to it, even where the servant acts unlawfully.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent

The bench

#

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

AS
majority

Wrote the judgment

Wrote the sole judgment dismissing the appeal, holding that the ex-parte judgment was regular, the delay in entering appearance was unexplained, and the appellant had no defence on liability since its own security guards stole the goods.

For the reasons given by me both as regards the nonexplanation of the delay and there being no good defence I would dismiss this appeal with costs.p. 5
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2979 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly stated in the judgment)

Relief refused

#

Setting aside of the ex-parte judgment and stay of execution

The delay in entering appearance was unexplained and the appellant had no cogent defence on liability, the theft having been committed by its own agents

p. 4

Costs

Appeal dismissed with costs to the 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.

Judgment entered properly cannot be set aside on the mere say so of the applicant. The applicant has to explain, plausibly, the cause of such delay.
p. 2Setting aside regular ex-parte judgments
In my view, the rule as regards showing merits in defence is a golden rule. The court ought to be satisfied that the applicant is not applying to set aside a regular judgment with a view to delaying the inevitable.
p. 3Affidavit of merits
Quite clearly the security guards who stole the gunny bags were servants or agents of the appellant.
p. 4Vicarious liability of bailee
For the reasons given by me both as regards the nonexplanation of the delay and there being no good defence I would dismiss this appeal with costs.
p. 5Disposition

Issues in the judgment

#
minor

The coram lists three judges (Kwach, Tunoi & Shah, JJ.A.) but only a judgment of Shah, J.A. appears in the record, with no indication of concurrence by the other two judges.

minor

The citation for Farden v. Richter is printed as (1989), 23 Q.B.D. 124, which is internally inconsistent with the surrounding 19th-century authorities in the quoted Supreme Court Practice passage.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Express (Kenya) Limited v Manju Patel [2001] KECA 154 (KLR)", Case Analysis (2001). Civil Appeal No. 158 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/154/eng@2001-06-29

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