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Court of AppealAllowedCivil Appeal (number not stated in judgment)· [1984] KECA 29 (KLR)

Price & another v Hilder (Civil Appeal 68 of 1982) [1984] KECA 29 (KLR)

Court of Appeal of Kenya
15 June 1984
AHA.R.W. HancoxZCZ.R. ChesoniJNJ.O. Nyarangi
2,381 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a decades-old default judgment, ruling courts won't easily reopen cases ignored for years—especially when key witnesses have died.

What this practically means

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Executive summary

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This is a Court of Appeal judgment at Nairobi dated June 15, 1984, delivered by Hancox JA with concurring judgments by Chesoni Ag JA and Nyarangi Ag JA. The appeal, brought by the trustees of the deceased plaintiff Trevor Price, challenged an order of Scriven J of September 27, 1979, which had partially set aside a 1970 default judgment of Mosdell J for Shs 414,500 (rent due, money lent under a lease, and interest) and given the defendant leave to defend the non-liquidated part of Shs 189,000. The respondent had evaded the proceedings from the outset, and only applied to set aside the judgment on April 7, 1978 - some eight years later - once a garnishee order in England threatened his assets. The Court of Appeal, applying the test in Mbogo v Shah and the principles of Brandon LJ in The El Amria as followed in Kenya, held that the trial judge's discretion was wrongly exercised: he took into account an irrelevant matter (Grifiths J's earlier disquiet about a possible Shs 96,000 over-credit from cattle sales), misapprehended the affidavit evidence about the availability of the plaintiff's son, and disregarded the injustice of reopening litigation nine years after judgment, when the principal witness had died. All three judges agreed the decision was plainly wrong. The appeal was allowed, Scriven J's order was set aside insofar as it disturbed the judgment as to Shs 189,000, the respondent's application of April 7, 1978 was dismissed in toto, and the respondent was ordered to pay the costs of the appeal. The judgment binds lower courts on the principles governing the setting aside of ex parte judgments and appellate interference with discretionary decisions.

Key legal issues

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01

Whether Scriven J properly exercised his discretion in setting aside the default judgment as to Shs 189,000

Holding

No. He took into account the Grifiths J disquiet about the extra Shs 96,000, a matter the respondent should have raised immediately after the October 1975 hearing, and misapprehended the facts as to the availability of the plaintiff's son.

Reasoning

The respondent deliberately stayed away, only applying on April 7, 1978 after learning the English garnishee order would bite. The judge himself found the application devoid of true merit, yet gave limited leave to defend. Taking Grifiths J's disquiet into account was an irrelevant consideration; the finding that the plaintiff's son was available in Kenya contradicted the affidavit evidence. Reopening litigation nine years later, after the plaintiff had died, would cause irreparable injustice.

p. 3
02

The principles governing appellate interference with a discretionary decision

Holding

The court will not interfere merely because it would have decided differently, but will interfere where the decision is clearly wrong due to misdirection, irrelevant considerations, or failure to consider relevant matters.

Reasoning

Both The El Amria (Brandon LJ), followed in Kenya, and Mbogo v Shah (Sir Charles Newbold P and De Lestang VP) state the applicable test. Applying it, the trial judge's decision was clearly wrong: he was mesmerized by Grifiths J's observations, misdirected himself on essential matters, and acted on matters on which he should not have acted.

p. 4

Legal principles established

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  • A superior court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong - because it has misdirected itself, acted on matters it should not have acted on, or failed to consider matters it should have considered, arriving at a wrong conclusion.
  • The test for setting aside a judgment is whether, in light of all facts and circumstances and the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary upon terms.
  • A judge setting aside an ex parte judgment must exercise discretion on accepted principles; doing so on irrelevant considerations and a misapprehension of the facts renders the decision plainly wrong.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of Scriven J dated September 27, 1979, insofar as it set aside Mosdell J's ex parte judgment as to Shs 189,000, set aside
  3. 3.Application of April 7, 1978 dismissed in toto
  4. 4.Respondent ordered to pay the costs of the appeal
On appeal from
High Court of Kenya
not stated in judgment
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over appeals from the High Court (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Price & another v Hilder (Civil Appeal 68 of 1982) [1984] KECA 29 (KLR)", Case Analysis (1984). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/29/eng@1984-06-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.