[1935] EACA 150

## ORIGINAL CIVIL.

### Before HORNE, J.

## SAYEED BIN MBARAK EL-SHEKELEY, Plaintiff

$\eta$

# ZAYANA BINTI ALI BIN ABDULLA, Defendant.

#### C. C. 13/1935 (Mombasa).

- Order 9 Rules 8 and 17—English Rules of Supreme Court Order 12 Rule 22—Entry of Appearance—Default by Defendant— Setting down $ex$ parte—Entry of Appearance out of time but before Judgment—A'ctual appearance of defendant when case. called on for hearing *ex parte*—Extension of time. - Held (13-3-35).—Although a plaintiff may set down a suit for hearing ex parte immediately upon defendant's default in entering an appearance and may obtain judgment, the defendant so in default may enter an appearance any time before judgment is obtained against him. A plaintiff setting down a suit ex parts in default<br>of entry of appearance has no right to proceed to prove his case if on the day fixed for the hearing ex parts the defendant actually appears in Court in person or by advocate duly instructed.

Budhdeo for the plaintiff.

Ross for the defendant.

RULING.—In this suit the plaint and summons were duly served upon the defendant on the 25-2-35. By the summons the defendant was required to enter an appearance within ten days, that is by the 7th March. No appearance was entered by that date and on the next day, 8th March, the plaintiff's advocate requested the Registrar to list the suit for hearing ex parte. It is a mortgage suit with a claim for principal and interest on three separate charges and there is a prayer for sale. The hearing ex parte was fixed for 13th March. On that day before the case was called on appearance was entered by the defendant and sealed but there was some delay in serving a sealed copy of the Memorandum of Appearance owing, it is said, to the seal not being handy.

The defendant instructed Mr. Ross who, rising at the time when the case is called on for hearing ex parte, urges that he is now entitled to deliver a defence within the time which would have been allowed had the defendant entered appearance in time. This application is based upon a ruling of GAMBLE, Ag. J., in Fisher Rodway Ltd. v. Allidina Visram (14 K. L. R. 93). $In$ that case the learned Ag. Judge in the absence of a specific rule on the matter applied Order 12 r. 22 of R. S. C. (England): That rule is in these terms:-

"A defendant may appear at any time before judgment. If he appears at any time after the time limited by the writ for his appearance he shall not unless the Court or Judge shall otherwise order, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ.'

Alternatively it is submitted that if I do not think fit to apply this rule then there is power to enlarge the time for appearance on terms in accordance with Order 47 r. 5.

It is submitted for the plaintiff by Mr. Budhdeo that Order 12 r. 22 R. S. C. ought not to be applied as there are specific rules in existence. I have no desire to go to English rules if they can be avoided; but it must be noted that the Supreme Court and the jurisdiction thereof is not solely the creation of the Legislature of the Colony. Art. 4 para. 2 of the Kenya Order in Council, 1921, appears to me to allow the Court to exercise jurisdiction in accordance with the procedure and practice of the Courts in England except in so far as that practice and procedure have been or may be modified by the Kenya Legislature or, of course, by another Order in Council.

I therefore think that if necessary Order 12 r. 22 R. S. C. (England) could be applied. However in this case both plaintiff and defendant by their respective advocates being before the Court, I think the matter may be dealt with without recourse to Order 12 r. 22 R. S. C. Our own Order 9 r. 17 seems to me to imply that I cannot in the circumstances proceed with a hearing ex parte. That rule says that "Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing: (a) the Court if satisfied that the summons (or notice of hearing) was duly served may proceed ex parte." It does not apply when both parties appear. All that rule 8 provides is that the plaintiff may set down the suit *ex parte*. But I cannot see anything in our rules which gives the plaintiff an absolute right to proceed to prove his case if the defendant does in fact come before the Court. Appearance in rule 17 includes the mere presence of a party in the Court or by an advocate duly instructed. The power to hear $ex$ parte under rule 17 is clearly only to be invoked in the absence of the defendant. One of the grounds for setting aside an ex parte decree is that a defendant has been prevented by sufficient cause from appearing when the suit was called on for hearing. This rule in India would not allow a plaintiff to put down the case for hearing before the expiry of the time allowed for filing written statement of defence. In Kenya he may set down ex parte in default of appearance but the right to proceed with the hearing ex parte cannot arise if the defendant does actually appear. This rule was not mentioned in argument and I am unable to find another applying to ex parte hearing. An ex parte hearing on failure to deliver a

defence is in a somewhat different position as a failure of defence may be taken as an admission of the plaintiff's claim. Nevertheless even at that stage there is a discretion under Order 47 to enlarge the time. See Kanji Devji v. Damodar Jinabhai and Co. (1934 E. A. C. A. 87). In the matter before me the defendant is in a stronger position for had he entered an appearance he would still have nine days in which to file a defence. He now appears in the sense in which that word is used in rule 17 and thus stops the hearing proceeding $ex$ parte. Two courses are open to me: I may allow the plaintiff to proceed and allow the defendant to be heard, in which case the plaintiff proceeds at his risk because no defence has been filed or delivered; or I may adjourn and extend the time for entering an appearance, that is put the defendant in the position he would be in if the English rule O. 12 r. 22 were in force here. It is submitted that before the latter course is adopted there should be a motion made by the defendant with notice under rules 1 and 2 of Order 48. But the amount of notice is discretionary; see rule 4. And taking into consideration the facts that both parties are before me, that had appearance been entered the defendant would still have nine days to file a defence, and that any *ex parte* decree may be set aside for cause shown, I do not think the plaintiff will be prejudiced if the time for entering appearance is extended to to-day, the 13th March, and the suit allowed to take the ordinary course on the defendant filing a defence by the 22nd March. and paying the costs (Sh. 62) thrown away forthwith."