[1947] EACA 6

## COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda)

HATHISANG PREMJI PATEL, Appellant (Original Plaintiff) $\mathbf{r}$

RAMJI JETHABHAL Respondent (Original one of the two Defendants) Civil Appeal No. 18 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Civil Procedure-Leave to proceed ex parte against a defendant-Kenya Civil Procedure Code Order IX Rule 9 (2).

The appellant brought a case against the respondent and another defendant "jointly, and/or severally, or in the alternative jointly and severally". The respondent was out of time in filing his defence and the appellant sought to prove his case against him ex parte. The learned Judge refused him leave to do so until he had heard the case against the second defendant.

Held (13-8-47).—That the learned Judge had a discretion, which he had rightly exercised, to delay judgment against the respondent until he had heard the case against the second defendant.

Budhdeo for the appellant.

Respondent present, unrepresented.

NIHILL, C. J.—This is an appeal from an order made by Bartley, J. in the Supreme Court of Kenya at Mombasa refusing leave to the appellant to prove his case *ex parte* against the respondent who was joined with another defendant in a suit brought by the appellant against them "jointly, and/or severally, or in the alternative jointly and severally" for wrongful detention and conversion of a motor vehicle. It appears that when appellant's counsel made this application to the learned Judge the respondent who had entered an appearance to the suit was out of time in the filing of his defence. The other defendant to the suit had not entered an appearance and filed his defence.

The learned Judge in dismissing the application made order as follows:-

"I am not prepared to allow the plaintiff to prove *ex parte* against the 1st defendant (i.e. the respondent to this appeal) in the circumstances in view of the defence filed by the 2nd defendant. The case should proceed to hearing when a just order can be made against the 1st defendant under. Order IX Rule 22.

Leave to appeal against the order was granted.

I agree with Mr. Budhdeo, counsel for the appellant, that the learned Judge's reference to Rule 22 of Order IX was inappropriate since there was not a failure of appearance on the part of one of the defendants to the suit in this case, but a failure on the part of one of them to file a defence. The appropriate rule is I think Order IX Rule 9 (2) and Mr. Budhdeo has argued that under the provision of this rule the learned Judge had no option but to grant the application. I disagree as I think the wording of the rule clearly indicates that in a case where there is more than one defendant; it is only after the time allowed for the filing of the last of the defences has expired, that the suit can be set down for hearing ex parte and contra if one of the defendants has entered a defence. I know of no rule under the Kenya Civil Procedure Code which takes away the discretion of a Court to postpone judgment against a defendant who does not.

defend until the suit has been heard and determined when a co-defendant has entered a defence. This does not mean that the defendant who has neglected to enter a defence will subsequently be given an opportunity to defend.

In this case it is impossible for us to say that the learned Judge has exercised his discretion wrongly since the defence entered by the 2nd defendant is not before us. In my opinion this appeal fails and must be dismissed with costs.

SIR G. GRAHAM PAUL, C. J.-I concur in the judgment of the learned President and would only add that on the face of the plaint this would appear to be a case where necessarily the learned Judge had to delay judgment as against the first defendant until he had heard the case for the second defendant, the claim being against the defendants "jointly, and/or severally, or in the alternative".

EDWARDS, $C. J.-I$ agree.