Simba Commodities Limited v Kenya Ports Authority & another [2015] eKLR

Key Facts

Issues

• The court considered whether the ex parte judgment entered against the 2nd Defendant (Awanad Enterprises Limited) on 10th January 2011 should be set aside under Order 10 Rule 4(1) of the Civil Procedure Rules. This followed the 2nd Defendant's application arguing that the judgment was entered in error due to a valid Notice of Appointment being filed on 17th November 2010, which constituted a proper appearance. The court referenced precedents like Patel v EA Cargo Handling Services [1974] and CMC Holdings Ltd v Nziooki [2004] to evaluate the discretion to set aside such judgments and the necessity of allowing defenses raising bonafide triable issues.
• The 2nd Defendant's defense claimed that the containers in question were cleared by an individual who fraudulently used their employee's Port Pass No. 9047782. The court acknowledged this as a triable issue, citing the precedent in Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang (2007) eKLR, which emphasizes allowing defenses with even a solitary bonafide issue to proceed. The court found merit in the defense's argument and permitted it to be heard on its merits.
• The 2nd Defendant argued that its Notice of Appointment, filed on 17th November 2010, fulfilled the requirements of a Memorandum of Appearance under Order 6 Rule 3(1) of the Civil Procedure Rules by providing the address of service. The court analyzed the procedural requirements for appearances and concluded that the Notice of Appointment should be deemed valid, as it contained the necessary information for service and did not demonstrate deliberate obstruction of justice.

Holdings

• The case is transferred to the Mombasa Chief Magistrate's Court for trial. The High Court determined this was the appropriate forum for the matter.
• The Notice of Appointment filed on 17th November 2010 by the 2nd Defendant is declared a valid Memorandum of Appearance, as it provided the required address for service under the Civil Procedure Rules.
• The plaintiff is awarded costs of the Notice of Motion dated 28th February 2011. The court granted this as part of its ruling on the application to set aside the ex parte judgment.
• The ex parte judgment entered on 10th January 2011 against the 2nd Defendant is set aside. The court found merit in the defendant's application, noting the Notice of Appointment provided a valid service address and the defense raised triable issues about fraudulent use of a port pass.

Remedies

• The Court declares the Notice of Appointment filed on 17th November 2010 on behalf of 2nd Defendant to be a Memorandum of Appearance.
• The Plaintiff is awarded costs of the Notice of Motion dated 28th February 2011.
• This case is hereby transferred to Mombasa Chief Magistrate's Court.
• The ex parte judgment entered on 10th January 2011 against 2nd Defendant is hereby set aside.

Legal Principles

Precedent Name

• CMC HOLDINGS LTD -Vs- NZIOKI [2004] KLR
• PATEL -Vs- EA CARGO HANDLING SERVICES [1974]EA 75
• SHAH -Vs- MBOGO [1967]EA
• BARAKA APPAREL EPZ (K) LTD –Vs- ROSE MBULA OJWANG T/A FAIDA 2002 CATERER (2007)eKLR

Cited Statute

Judge Name

Passage Text

• "It is our humble view that where there is a Defence which raises bona fide triable issues, or even a solitary bonafide issue, the same ought to be allowed to proceed to hearing and final determination on merit."
• a. The ex parte judgment entered on 10th January 2011 against 2nd Defendant is hereby set aside.
• "There are no limits or restrictions on the Judge's discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the Court is to do justice to the parties, and the Court will not impose conditions on itself to fetter the wide discretion given it by the rules."