[1976] KECA 11 (KLR)
The Court of Appeal held that the High Court properly exercised its discretion under Order IX Rule 10 of the Civil Procedure Rules to set aside the ex parte judgment. The judge was entitled to inquire into the issue of service, especially in light of conflicting affidavits, and to examine the deponents on oath. The...
Source-derived case information.
- Citation
- [1976] KECA 11 (KLR)
- Parties
- Appellant: Karatina Garments Ltd; Respondent: David Nyanarua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 1976
- Procedural Posture
- Civil Appeal / Appeal From Order Setting Aside Ex Parte Judgment
- Outcome
- appeal dismissed with costs
- Judges
- JS Musoke
- Legal Topics
- Ex Parte Judgment, Service of Summons, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karatina Garments Ltd
Appellant
David Nyanarua
Respondent
Procedural Posture
Civil Appeal / Appeal From Order Setting Aside Ex Parte Judgment
Legal Issues
- 1 Whether the High Court erred in finding that the respondent was not served with summons and plaint.
- 2 Whether the High Court properly exercised its discretion in setting aside the ex parte judgment.
Ratio Decidendi
The Court of Appeal held that the High Court properly exercised its discretion under Order IX Rule 10 of the Civil Procedure Rules to set aside the ex parte judgment. The judge was entitled to inquire into the issue of service, especially in light of conflicting affidavits, and to examine the deponents on oath. The judge, having seen and heard the witnesses, believed the respondent's account that he was not served. The appellate court found no basis to interfere with the judge's factual findings or exercise of discretion, emphasizing that cases should be decided on their merits rather than on procedural technicalities. Accordingly, the appeal was dismissed and the order setting aside the...
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL FOR EAST AFRICA
AT NAIROBI
(Coram: Wambuzi P, Mustafa & Musoke JJ A)
CIVIL APPEAL NO 6 OF 1976
KARATINA GARMENTS LTD………………...……APPELLANT
VERSUS
DAVID NYANARUA…….……………..…………. RESPONDENT
Appeal from an order of Chesoni J
in the High Court at Nairobi
dated 13th August 1975
in
Civil Case No 667 of 1975
JUDGMENT OF THE COURT
The appellant filed a suit in the High Court claiming the sum of Shs 62,701 from the respondent under the Transfer of Businesses Act. The respondent did not enter appearance and judgment was entered against him in default on 8th May 1975. The respondent applied to the High Court to set aside the judgment on the ground that he had not been served with any summons in connection with the suit. The High Court allowed the application and set aside the judgment on 13th August 1975. It is against this decision that the appellant now appeals to this Court.
The respondent’s application before the High Court was supported by an affidavit dated 22nd July 1975 in which he denied the appellant’s claim and denied having been served with a summons or the plaint in the suit. He claimed that he had a good defence. On the other hand, the process server employed by the appellant’s advocates deponed in his affidavit dated 29th July 1975 that he had served the respondent at his place of business at Kericho with a summons and a copy of the plaint in the suit and that the respondent had declined to sign the original copy of the summons. Due to the conflicting affidavits, it would appear, the Court decided to have the deponents examined on oath and gave a detailed ruling holding that the respondent was never served with the summons. This ruling has been attacked on a number of grounds stated in the memorandum of appeal to the effect that the judge erred in holding that there was no service of the summons.
We would like to state from the outset that rule 10 of order IX of the Civil Procedure Rules, then in force, gave power to the Court to set aside or vary a judgment given ex parteupon such terms as may be just. The power was discretionary and unqualified. We are of the view that in a case like this one where the respondent denied having been served with a summons, it was proper for the Court to inquire into this aspect of the matter; and in the face of the conflicting affidavits filed, it was again proper for the deponents to be examined on oath to try and ascertain the truth. It was then a matter of fact as to which party was to be believed. The judge who saw and heard the deponents believed the respondent. We are unable on the evidence as a whole to say that he came to the wrong conclusion, or that he did not exercise his discretion judicially. We have said time and again that, in normal circumstances, the Court should lean towards a policy of deciding cases on their merits rather than encourage ex partejudgments based on procedural technicalities.
In this case it is quite clear that the judge was satisfied that the party allegedly in default should be allowed to defend the claim against him. The basis of his decision was that the respondent was not served with a summons and a plaint and it follows that the ex partejudgment had to be set aside.
Mr Khanna for the appellant has submitted that this finding was unreasonable, contrary to the weight of the evidence, and in fact, perverse. With respect, we do not agree, We have deliberately omitted to mention a number of points raised by Mr Khanna in his appeal because we are of the view that, although they are interesting, they are only of peripheral significance and do not affect the basis of the judge’s decision.
Appeal dismissed with costs.
Dated at Nairobi this 30th Day of April 1976
S.W.W. WAMBUZI
………………….
PRESIDENT
A.MUSTAFA
……………………
JUDGE OF APPEAL
J.S. MUSOKE
……………….……
JUDGE OF APPEAL