In the case of Shah v Mbogo (1967) EA 166, the Court of Appeal held that the principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are twin. Firstly, there are no limits or restrictions on the judge’s discretion to set aside except that if the judge 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 to it by the rules. Secondly, this discretion to set aside is intended to be so exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. This was further reiterated by the Court of Appeal in the case of Patel v E.A. Cargo Handling Services Ltd (1974) EA 75 and myriad other notable cases too numerous to enumerate.
The Honourable Court pronounced that one of the factors to be considered when the invitation is made to set aside an ex parte order is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.
Related Case laws on the principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are:
:
Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76 C and E: "...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..."
Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48:
"...this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice..."
Mbogo v Shah [1968] EA 93:
"...the Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice..."
Additional Case Summaries
Case Law on Granting adjournment: Cycle Agencies Ltd & 4 Others vs. Masukhalal Ramji Karia
The circumstances under which an application for adjournment would be granted was considered by the Supreme Court of Uganda in Famous Cycle Agencies Ltd & 4 Others vs. Masukhalal Ramji Karia, where the Court expressed itself as follows:
“The High Court’s discretion to adjourn a suit is provided for in Order 15, rule 1(1) of the Civil Procedure Rules, which states that the Court, may, if sufficient cause is shown, at any stage of the suit grant time to the parties, or to any of them, and may from time to time adjourn the hearing of the suit….Under this rule the granting of an adjournment to the party to a suit is thus left to the discretion of the court and the discretion is not subject to any definite rules, but should be exercised in a judicial and reasonable manner, and upon proper material. It should be exercised after considering the party’s conduct in the case, the opportunity he had of getting ready and the truth, and sufficiency of the reason alleged by him for not being ready. But the discretion will be exercised in favour of the party applying for adjournment only if sufficient cause is shown. Sufficient cause refers to the acts or omissions of the applicant for adjournment. What is sufficient cause depends upon the circumstances of each case and generally speaking, where the necessity for the adjournment is not due to anything for which the party applying for it is responsible, or where there has been little or no negligence on his part an adjournment would not normally be refused. But where the party has been wanting in due diligence or is guilty of negligence an adjournment may be refused…..Under the corresponding rule of the Indian “Code of Civil Procedure” by Manohar and Ditaley, 10th Ed, page 543, circumstances which have been held to constitute sufficient cause for adjournment include where a party is not ready for hearing by reason of his having been taken by surprise; where he could not reasonably know of the date of the hearing in sufficient time to get ready for the same; where his witnesses fail to appear for the hearing owing to non-service of summons on them when such no service is not due to the fault on the party; where a party is not ready owing to his lawyer having withdrawn his appearance in the case under circumstances which do not give the party sufficient time to engage another lawyer and enable him to get ready; and where the refusal of an adjournment to a party will enable the opposite party to successfully evade a previous interim order against him……The reasons given for adjournment did not justify one. First it is clear that the 2nd respondent’s lack of interest in the suit was a matter of surprise to the applicant’s when the suit came up for hearing on the material day. But from the correspondence it is shown that the 2nd respondent’s position regarding the suit was known long before the hearing date and therefore instructions should have been sought before the hearing date. Secondly since the objective of the suit was to determine who the appellant’s landlord was and not to determine any proprietary interest by the appellant in the suit property, and as the 2nd and the 3rd respondents disclaimed any interest over the suit property and it was clearly evident to the appellants that only the 1st respondent had claimed such interest in the suit property, it is not true that an adjournment of the suit property to enable the appellants’ counsel obtain instructions from them was sufficient cause. Thirdly, all the appellants were themselves absent from the court when the suit was called for hearing and no explanation was offered for their absence. Their absence without an explanation leaves the impression that their learned counsel went to court with the expectation of being granted an adjournment as a matter of course and if that was so, it was too presumptuous on the part of those concerned for which the appellants only have themselves to blame”
“The High Court’s discretion to adjourn a suit is provided for in Order 15, rule 1(1) of the Civil Procedure Rules, which states that the Court, may, if sufficient cause is shown, at any stage of the suit grant time to the parties, or to any of them, and may from time to time adjourn the hearing of the suit….Under this rule the granting of an adjournment to the party to a suit is thus left to the discretion of the court and the discretion is not subject to any definite rules, but should be exercised in a judicial and reasonable manner, and upon proper material. It should be exercised after considering the party’s conduct in the case, the opportunity he had of getting ready and the truth, and sufficiency of the reason alleged by him for not being ready. But the discretion will be exercised in favour of the party applying for adjournment only if sufficient cause is shown. Sufficient cause refers to the acts or omissions of the applicant for adjournment. What is sufficient cause depends upon the circumstances of each case and generally speaking, where the necessity for the adjournment is not due to anything for which the party applying for it is responsible, or where there has been little or no negligence on his part an adjournment would not normally be refused. But where the party has been wanting in due diligence or is guilty of negligence an adjournment may be refused…..Under the corresponding rule of the Indian “Code of Civil Procedure” by Manohar and Ditaley, 10th Ed, page 543, circumstances which have been held to constitute sufficient cause for adjournment include where a party is not ready for hearing by reason of his having been taken by surprise; where he could not reasonably know of the date of the hearing in sufficient time to get ready for the same; where his witnesses fail to appear for the hearing owing to non-service of summons on them when such no service is not due to the fault on the party; where a party is not ready owing to his lawyer having withdrawn his appearance in the case under circumstances which do not give the party sufficient time to engage another lawyer and enable him to get ready; and where the refusal of an adjournment to a party will enable the opposite party to successfully evade a previous interim order against him……The reasons given for adjournment did not justify one. First it is clear that the 2nd respondent’s lack of interest in the suit was a matter of surprise to the applicant’s when the suit came up for hearing on the material day. But from the correspondence it is shown that the 2nd respondent’s position regarding the suit was known long before the hearing date and therefore instructions should have been sought before the hearing date. Secondly since the objective of the suit was to determine who the appellant’s landlord was and not to determine any proprietary interest by the appellant in the suit property, and as the 2nd and the 3rd respondents disclaimed any interest over the suit property and it was clearly evident to the appellants that only the 1st respondent had claimed such interest in the suit property, it is not true that an adjournment of the suit property to enable the appellants’ counsel obtain instructions from them was sufficient cause. Thirdly, all the appellants were themselves absent from the court when the suit was called for hearing and no explanation was offered for their absence. Their absence without an explanation leaves the impression that their learned counsel went to court with the expectation of being granted an adjournment as a matter of course and if that was so, it was too presumptuous on the part of those concerned for which the appellants only have themselves to blame”
Case Law on Following prescribed procedures: Chelashaw vs. Attorney General & Another [2005] 1 EA 33/Onjula Enterprises Ltd vs. Sumaria [1986]
The rationale for following a prescribed procedure was restated in Chelashaw vs. Attorney General & Another [2005] 1 EA 33, where it was held that without rules of practice and procedure the application and enforcement of the law and the administration of justice would be chaotic and impossible and their absence or non-adherence would lead to uncertainty of the law and total confusion since laws serve a purpose and they enhance the rule of law.
Additional case laws:
Rules and Procedures must be followed in litigation. In Onjula Enterprises Ltd vs. Sumaria [1986], the Court of Appeal held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved.
Additional case laws:
Rules and Procedures must be followed in litigation. In Onjula Enterprises Ltd vs. Sumaria [1986], the Court of Appeal held that:
“The rules of the court must be adhered to strictly and if hardship or inconvenience is thereby caused, it would be that easier to seek an amendment to the particular rule. It would be wrong to regard the rules of the court as of no substance. A rule of practice, however technical it may appear, is almost always based on legal principle, and its neglect may easily lead to disregard of the principle involved.
Case Law on granting of adjournments in proceedings: Republic vs Independent Electoral and Boundaries Commission & 2 Ex Parte Wavinya Ndeti
The Kenyan Court in the case of Republic vs Independent Electoral and Boundaries Commission & 2 Ex Parte Wavinya Ndeti addressed its mind on the question of the grant of adjournments in proceedings. It stated thus:
"[88] On the question of fair hearing, it was submitted that the Applicant was fully heard and the contention that the advocate who held the ex parte Applicant’s counsel’s brief was not fully representative of the Applicant is not true. Since the dispute was lodged with the Respondent at their office in Machakos on 1st June 2017, the Respondent had until 9th June 2017 to conclude the matter. Because of time constraints and the problem of backlog piling up at the Respondent’s, the Respondent could not grant adjournment especially since there was an advocate who was able to proceed and was satisfied with the process. it was submitted that the Respondent had strict timelines and could not grant adjournments as the complaint was heard on the last day of the sitting of the Respondent Tribunal. Moreover, the counsel who held the Applicant’s counsel’s brief, one Mr. Ochieng Oginga, continues to appear for the ex parte Applicant even in these judicial review proceedings.
"[88] On the question of fair hearing, it was submitted that the Applicant was fully heard and the contention that the advocate who held the ex parte Applicant’s counsel’s brief was not fully representative of the Applicant is not true. Since the dispute was lodged with the Respondent at their office in Machakos on 1st June 2017, the Respondent had until 9th June 2017 to conclude the matter. Because of time constraints and the problem of backlog piling up at the Respondent’s, the Respondent could not grant adjournment especially since there was an advocate who was able to proceed and was satisfied with the process. it was submitted that the Respondent had strict timelines and could not grant adjournments as the complaint was heard on the last day of the sitting of the Respondent Tribunal. Moreover, the counsel who held the Applicant’s counsel’s brief, one Mr. Ochieng Oginga, continues to appear for the ex parte Applicant even in these judicial review proceedings.
[98] The first issue is whether this Court ought to interfere with the Committee’s decision made on the application on behalf of the ex parte applicant for adjournment. The decision whether or not to grant an adjournment is an exercise of judicial discretion cannot be in doubt. When then do courts of law interfere with exercise of discretion? The Court can only intervene in: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (where the decision-maker is irrational and unreasonable.
[104] Having considered the foregoing, it is my view that whereas the applicant’s complaints regarding the denial of adjournment may be a basis for an appeal, the said complaints do not warrant the grant of judicial review order of certiorari sought herein. The Committee in declining to grant the adjournment sought no doubt considered the effect of the delay of the proceedings before it and based thereon exercised its discretion as it was entitled to do."
Case Law: Discretionary Powers of the Courts to reinstate a suit/
The courts power to reinstate a suit is a discretionary power that is enabled by, amongst others, the provisions of Section 3A of the Civil Procedure Act which empowers the courts not to be limited or have its inherent powers affected; therefore, make such orders as are necessary for the ends of justice to be met or to avoid abuse of the process of the court.
In emphasizing and demonstrating the gravitas and notion of discretionary power, the Court of Appeal in the decided case of Belinda Murai & 9 others v Amos Wainaina [1979] eKLR espoused that the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better; the court may not forgive or condone it but it ought to certainly do whatever is necessary to rectify it if the interest of justice so dictates.
Further, Order 51 Rule 3 of the Civil Procedure Rules, 2010, enables and clothes the Honourable Court with authority to make an ex parte order upon such terms as to costs or otherwise if satisfied that the delay caused by proceeding in an ordinary way would or might entail irreparable or serious mischief.
In emphasizing and demonstrating the gravitas and notion of discretionary power, the Court of Appeal in the decided case of Belinda Murai & 9 others v Amos Wainaina [1979] eKLR espoused that the door of justice is not closed because a mistake has been made by a person of experience who ought to have known better; the court may not forgive or condone it but it ought to certainly do whatever is necessary to rectify it if the interest of justice so dictates.
The Honorable Court noted that:
"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress."
Further, Order 51 Rule 3 of the Civil Procedure Rules, 2010, enables and clothes the Honourable Court with authority to make an ex parte order upon such terms as to costs or otherwise if satisfied that the delay caused by proceeding in an ordinary way would or might entail irreparable or serious mischief.
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