Wakilii

El-Shekeley v Abdulla (C.C. 13-1935 (Mombasa).)

East African Court of Appeal · [1935] EACA 150 · 1935 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for mortgage enforcement with application by defendant for extension of time to enter appearance after default
Decision
Defendant granted extension of time to enter appearance and file defence; suit to proceed in ordinary course

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a defendant defaults in entering appearance within the time limited and the plaintiff sets down the suit for ex parte hearing, but the defendant enters appearance and actually appears in court before the case is called on, the plaintiff cannot proceed ex parte. Order 9 Rule 17 requires the defendant's absence for ex parte proceedings. The court has discretion to extend time for appearance, particularly where the defendant would still have time to file a defence had appearance been timely entered.

Outcome

Defendant granted extension of time to enter appearance and file defence; suit to proceed in ordinary course

Facts

This was a mortgage suit with claims for principal and interest on three separate charges and a prayer for sale. The plaint and summons were served on the defendant on 25 February 1935, requiring appearance within ten days (by 7 March). The defendant failed to enter appearance by that date. On 8 March, the plaintiff's advocate requested the suit be listed for ex parte hearing, which was fixed for 13 March. On 13 March, before the case was called on, the defendant entered appearance and instructed an advocate. The defendant sought to deliver a defence within the time that would have been allowed had appearance been entered timely.

Issues

  1. Whether a plaintiff may proceed with an ex parte hearing when the defendant appears in court on the day fixed for hearing, having entered appearance after the time limited but before judgment.
  2. Whether the court should extend time for entering appearance where the defendant appears before judgment is obtained.

Orders

  • Time for entering appearance extended to 13th March 1935.
  • Defendant to file defence by 22nd March 1935.
  • Defendant to pay costs thrown away (Shs. 62) forthwith.

Rules and key headnotes

Civil Procedure — Ex Parte Proceedings — Defendant's Appearance Before Hearing
Although a plaintiff may set down a suit for hearing ex parte immediately upon a defendant's default in entering appearance, the plaintiff has no right to proceed to prove his case if on the day fixed for the ex parte hearing the defendant actually appears in court in person or by an advocate duly instructed.
Civil Procedure — Appearance — Entry After Time Limited But Before Judgment
A defendant who defaults in entering appearance within the time limited may enter an appearance at any time before judgment is obtained, and such appearance prevents the plaintiff from proceeding ex parte under Order 9 Rule 17.
Civil Procedure — Extension of Time — Appearance Out of Time
Where a defendant enters appearance after the time limited but before judgment, and both parties are before the court, the court has discretion to extend the time for entering appearance and allow the suit to take its ordinary course, particularly where the defendant would still have time to file a defence had appearance been timely.
Civil Procedure — Interpretation of Rules — Order 9 Rule 17
Order 9 Rule 17, which permits the court to proceed ex parte where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, does not apply when both parties appear, and 'appearance' includes the mere presence of a party in court or by an advocate duly instructed.

Legislation cited (7)

  • Order 9 Rule 8
  • Order 9 Rule 17
  • Order 12 Rule 22 (English Rules of Supreme Court)
  • Order 47 Rule 5
  • Order 48 Rules 1 and 2
  • Order 48 Rule 4
  • Kenya Order in Council 1921 Art.4 para.2

Cases cited (2)

  • Fisher Rodway Ltd v Allidina Visram (14 K.L.R. 93)
  • Kunji Devji v Damodar Jinabhai (1934 E.A.C.A. 87)

Full judgment

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

El-Shekeley v Abdulla (C.C. 13-1935 (Mombasa).) [1935] EACA 150 (1 January 1935)
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.