Wakilii

Din v Anand (Civil Appeal No. 72 of 1952)

East African Court of Appeal · [1955] EACA 48 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya dismissing application to set aside ex parte judgment for non-appearance
Decision
Ex parte dismissal set aside; matter remitted to Supreme Court for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the mistake or misunderstanding of a plaintiff's legal adviser, even if negligent, may constitute sufficient cause for setting aside an ex parte dismissal under Order IX rule 20. The discretion of the court is perfectly free and the words sufficient cause do not require special grounds. The lower court erred in law by treating counsel's negligence as incapable of being sufficient cause. Appeal allowed and ex parte dismissal set aside on terms.

Outcome

Ex parte dismissal set aside; matter remitted to Supreme Court for hearing on merits

Facts

On 26 May 1952, eight cases were listed before Rudd J in the Supreme Court of Kenya. The appellant's case stood eighth. The first seven cases were disposed of rapidly. When the eighth case was called, the plaintiff's advocate Mr Sirley was not present. Mr Khanna for the defendant stated the claim was not admitted and he knew no reason for the plaintiff's absence. The Judge dismissed the action with costs. Two days later the plaintiff moved to set aside the ex parte judgment. Mr Sirley's affidavit stated he believed the case could not come on for hearing that early, because a case sixth on the list was known to proceed to hearing. That sixth case was however adjourned. Rudd J dismissed the application on the basis that counsel's negligence could not constitute sufficient cause under Order IX rule 20. The weekly list system had been introduced only the previous month.

Issues

  1. Whether negligence of an advocate in failing to attend court constitutes 'sufficient cause' for setting aside an ex parte dismissal under Order IX rule 20 of the Civil Procedure (Revised) Rules.
  2. Whether the words 'sufficient cause' in Order IX rule 20 require special grounds comparable to those required under Order IX rule 24.

Orders

  • Appeal allowed.
  • Order of Rudd J dismissing the motion set aside.
  • Order dismissing the suit set aside.
  • Plaintiff to pay to defendant all costs occasioned by or thrown away in consequence of non-appearance on 26 May 1952, other than costs of appeal.
  • Costs of appeal to be paid by respondent to appellant.
  • Case to be set down for hearing on such day as the Registrar of the Supreme Court may direct.

Rules and key headnotes

Civil Procedure — Setting Aside Ex Parte Judgments — Sufficient Cause under Order IX Rule 20 — Negligence of Legal Adviser
The mistake or misunderstanding of a party's legal adviser, even though negligent, may constitute sufficient cause for setting aside an ex parte dismissal under Order IX rule 20 of the Civil Procedure (Revised) Rules, the discretion of the court being perfectly free and untrammelled.
Civil Procedure — Setting Aside Ex Parte Judgments — Interpretation of Sufficient Cause — Distinguished from Special Grounds
The words 'sufficient cause' in Order IX rule 20 are not comparable or synonymous with 'special grounds' or 'special reasons', and reasons for non-appearance may be sufficient to enable a party to set aside an ex parte decree without being in any way special.
Civil Procedure — Setting Aside Ex Parte Judgments — Exercise of Discretion — Principles
Whether grounds for granting relief under Order IX rule 20 will be accepted depends on the facts of the particular case, it being neither possible nor desirable to indicate in detail the manner in which the discretion should be exercised, but the court's discretion is unfettered and should be exercised to prevent permanent destruction of a bona fide claim through procedural defect.
Civil Procedure — Setting Aside Ex Parte Judgments — Ecksteen v Kutosi — Overruling
The decision in Ecksteen v Kutosi that mere oversight on the part of an advocate or clerk cannot of itself constitute sufficient cause to set aside a judgment under Order IX rule 24 was incorrectly decided, as such oversight can be sufficient cause depending on the facts of each case.

Legislation cited (4)

  • Civil Procedure (Revised) Rules Order IX rule 19
  • Civil Procedure (Revised) Rules Order IX rule 20
  • Civil Procedure (Revised) Rules Order IX rule 24
  • Civil Procedure (Revised) Rules Order XXV rule 2(2)

Cases cited (12)

  • H K Shah and Another v Osman Allu (Court of Appeal for Eastern Africa No. 45 of 1947)
  • Mistri Ghulam Mahomed v Khamisa Suleman (1908)
  • Ecksteen v Kutosi (1951)
  • Re Helsby [1894] 1 QB 742
  • Coles v Ravenshear [1907] 1 KB 1
  • Baker v Faber (1908)
  • Selwyn v Baker (1924)
  • Kevorkian v Burney (1937)
  • Gatti v Shoosmith (1939)
  • Patrick Njoroge Ngumi v Livingstone Wanjii Muthui (Civil Appeal No. 16 of 1953)
  • Phakey v World Wide Agencies Ltd (Court of Appeal for Eastern Africa No. 1 of 1948)
  • Standard Goods Corporation Ltd v Harakchand Nathu & Co (Court of Appeal for Eastern Africa No. 99 of 1950)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Din v Anand (Civil Appeal No. 72 of 1952) [1955] EACA 48 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.