Smith v Nakuru Auto Garage (Civil Case No. 37 of 1951) [1951] EACA 343 (1 January 1951)

ORIGINAL CIVIL

Before WINDHAM. J.

J. H. E. SMITH, Plaintiff

$\boldsymbol{v}$

AUTO ELECTRIC SERVICES now NAKURU AUTO GARAGE, Defendant

Civil Case No. 37 of 1951

Procedure—Order 29, rule 5, Civil Procedure Rules—Appearance by partners.

The facts appear sufficiently from the judgment.

Held (28-5-51).—(1) That until judgment is entered a defendant may enter an appearance subject to such order as to costs as the Court may impose.

(2) That a number of partners may enter their appearances on one form and a separate form for each partner is not necessary.

Cases referred to: Fisher Simmons & Rodway (E. A.) Ltd. v. H. A. Allidina Visram. 14 K. L. R.

93.

Agard for plaintiff.

Nowrojee for defendant.

JUDGMENT.—The plaintiff-applicant applies for judgment in default of appearance, on the ground that the defendant-respondents failed to enter a valid memorandum of appearance within the prescribed time, that is to say on or before 14th May, 1951. The respondents did enter a memorandum of appearance of 14th May, but it was admittedly invalid because it failed to comply with Order 29, rule 5, of the Civil Procedure Rules in that, the respondents being a partnership, they entered appearance in the partnership name and not individually in the names of the partners as the rule requires. The applicants accordingly filed the present motion on 16th May. Thereupon the respondents on 23rd May filed a fresh memorandum of appearance, of which they duly gave notice to the applicants, before judgment had been entered against them. The applicants, in filing this notice of motion as hurriedly as they did, were of course within their rights, though I think they acted with undue haste in their attempting to snatch an *ex parte* judgment upon a technicality. But meanwhile the respondents have entered a fresh appearance, and this Court is entitled to consider whether it be a good one; for I concur with the decision of this Court in Fisher Simmons and Rodway (East Africa) Ltd. v. H. A. Allidina Visram, 14 K. L. R. 93, that until judgment is entered against him it is open to a defendant to enter an

appearance even though the prescribed time for doing so has expired, subject of course to such order for costs as the Court may think just. The only remaining question is whether the fresh appearance itself conforms to the requirements of Order 29, rule 5. It is contended for the applicant that it does not. The applicant argues that a separate form should have been filled up by each partner in the respondents firm, whereas here one form only has been entered, bearing the names of four individuals stated to be now carrying on business under the firm name of "The Nakuru Auto Garage", they having formerly traded under the name of "Auto Electric Services", a now defunct business, in which name they were sued. I have been referred to no authority

showing that it was necessary to fill in four separate forms, except a form at page 243 of Vol. XII of the Encyclopædia of Forms and Precedents which is in my view equivocal and in any case is of no binding authority. Order 29, rule 5, merely requires that "Where persons are sued as partners in the name of their firm, they shall appear individually in their own names". Four individual appearances entered on one form are, in my view, a sufficient compliance with this provision, the object of which is that the position of each individual partner shall be unequivocally stated.

That being so, I hold that, the respondents having entered valid appearances, this application must be dismissed. In all the circumstances I think the most equitable course will be to make no order for costs. The respondents must file their defence within 15 days of to-day.