Fisher Simmons and Rodway East Africa Ltd v Visram (CC. 41/1932.) [1932] EACA 42 (1 January 1932)

### ORIGINAL CIVIL.

#### Before GAMBLE, Acting J.

## FISHER, SIMMONS & RODWAY (EAST AFRICA), LTD. $(Plaintiffs)$

v.

# H. A. ALLIDINA VISRAM (Defendants).

### C. C. $41/1932$ .

Appearance-delay in entering-Hearing ex parte in default of appearance by defendant-Order IX, Rule 8.

Held (20-1-33): -That appearance may be entered at any time before<br>judgment. [Order IX, Rule 4, Kenya Rules, and Order XII,<br>Rule 22, of the English Supreme Court Rules compared.]

Newton for Plaintiffs.

Phadke for Defendants.

Wewton.—Summons served 8-12-32. 21 days from that date allowed for entry of appearance. Application made 30-12-32 for entry of judgment by default, but Registrar ordered formal proof as the whole claim was not for a liquidated demand. Appearance entered 31-12-32 for defendant. Registrar should not have accepted appearance.

Phadke.—Dates mentioned accepted as correct. Conflict between English Rule and Kenya Rules. Comparison between R. S. C. (England) Order XII, Rule 22, and Kenya Order IX, Rule 4. Appearance may be entered at any time up to entering judgment.

Newton replied.

RULING.—This suit was listed for hearing $cx$ parte presumably under Order IX, Rule 8. On the case being called Mr. Phadke raised the preliminary objection that as he had entered an appearance it was not competent for the Court to proceed $cx$ -parte.

The summons was served on defendant on 8-12-32 and he was allowed 21 days in which to enter an appearance, i.e., he had to enter appearance on or before December 29th, Mr. Newton states that appearance was not entered until December 31st, actually the Court seal shows the date as 5-1-33: this discrepancy is not, however, material.

On 30-12-32 Mr. Newton applied that judgment be entered under Order IX, Rule 4. The initial error he made was in considering his claim a liquidated demand: actually it was a liquidated demand plus a claim for possession, and consequently Rule 4 was inapplicable.

The Registrar accordingly treated his application to enter judgment as an application under Order IX, Rule 8, and set the case down for hearing $ex$ parte.

Before the hearing date Mr. Phadke entered an appearance. As I interpret Order IX it only purports to allow a plaintiff certain short forms of procedure in the event of an appearance not being entered by the prescribed date: should the plaintiff not avail himself of the facilities of Rule 4 or Rule 8 it is still open to the defendant to enter an appearance even though the prescribed time for entering an appearance has expired. Had this been entirely a liquidated demand the Registrar would at once have entered judgment under Rule 4, and Mr. Phadke would have been absolutely debarred from entering an appearance unless the Court had come to his assistance under the provisions of Rule $10.$

I am confirmed in my opinion by Order 12, Rule 22, of the R. S. C. which reads: "A defendant may appear at any time before judgment."

Mr. Newton argued that as we in this Colony have our own Code and Rules of Civil Procedure we should not look to the R. S. C. I agree with him when a provision in the Code is mandatory and unambiguous. But I think in this case it not only right but desirable to refer to the English order which is fuller and more explicit than our own.

For these reasons I consider the defendant is entitled to appear and defend the action.

As, however, the defendant appears to be an extremely elusive person, and as under Order 12, Rule 22 of the R. S. C. a defendant shall not be entitled to further time for delivering his defence I order that the defence be filed within 24 hours of the delivery of this ruling.