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BOUCHARD INTERNATIONAL (SERVICES) LTD
V.
PHILIP NZIOKI M'MWERERIA

(1987) JELR 103524 (CA)

Court of Appeal 14 Oct 1987 Kenya
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Case Details

Suit Number:Civil Appeal 37 of 1985
Judges:Joseph Raymond Otieno Masime, Fred Kwasi Apaloo, Harold Grant Platt
Location:Nairobi
Other Citations:Bouchard International (Services) Ltd v. Philip Nzioki M'mwereria [1987] eKLR

JUDGMENT

Platt JA On December 3, 1984, Aganyanya J gave an ex parte judgment after proof of the claim because the defendant had failed to appear at the trial. On January 16, 1985 the defendant applied by chamber summons to set aside the ex parte judgment. Porter J did so and he has been criticised for his opinion in this appeal. It is said that he was wrong to base the exercise of his discretion on the test as to whether or not there was a danger that justice may not have been done. It is objected that Porter, J constituted himself as an appellate court and was wrong to overrule Aganyanya J’s finding that the plaintiff had established the claim on a balance of probabilities. Porter J was at fault, it is argued, by failing to give due weight to the presumption that once the defendant was shown to be the owner of the vehicle the onus of proof was on him to show that he was not the driver, and by speculating that all sorts of possibilities existed.

The thoughtful and anxious judgment of Po…

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