Mark William Trevor Price & another (Trustees of the Estate of Trevor Price - Deceased) v John Greaves Hilder
The bottom line
#Kenya's Court of Appeal restored a 1970 ex parte judgment, ruling a judge cannot rely on irrelevant foreign comments and must punish nine-year delay.
What this practically means
#Executive summary
#Key legal issues
#Wrong exercise of discretion by taking into account irrelevant matters
The trial judge wrongly exercised his discretion by taking into account Griffiths J's disquiet that the plaintiff may have received almost £5,000 more than was due to him.
The court applied the EL Amria principles as accepted in Kenya and Mbogo v Shah: a discretion is wrongly exercised where the judge acts on matters on which he should not have acted. Griffiths J's observations in the English proceedings were irrelevant to the Kenyan judge's discretion and mesmerized him into setting aside the ex parte judgment.
Delay and laches in applying to set aside an ex parte judgment
A litigant who waits nearly nine years to seek setting aside of an ex parte judgment is guilty of laches, and justice can hardly be done after such delay, particularly where a party has died.
The respondent waited nearly nine years before seeking to set aside the ex parte judgment. The court held the delay itself made the discretion impossible to exercise in his favour, and that further litigation at that late stage risked committing an injustice, one of the original parties being dead.
Internal inconsistency in the trial judge's judgment
The trial judge's concluding remarks granting a 'last chance' were out of place because he had earlier held the application devoid of merit.
Nyarangi, AG JA found the trial judge's conclusion inconsistent with his own earlier finding that the application was devoid of merit, demonstrating misdirection on essential matters and reinforcing that the decision was clearly wrong and liable to be set aside on appeal.
Legal principles established
#- An appellate court will not interfere with the exercise of a lower court's discretion unless satisfied the decision is clearly wrong, because of misdirection, acting on wrong matters, or failure to consider relevant matters leading to a wrong conclusion.
- A court should not interfere with a trial judge's exercise of discretion merely because the appellate court would have decided differently.
Court orders
#- 1.Appeal allowed in the terms proposed by Hancox, JA in his judgment
- 2.Costs as proposed by Hancox, JA (order on costs concurred in by the concurring judges)
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No 7 of 1970
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the order of the High Court (as constituted under the Judicature framework; no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark William Trevor Price & another (Trustees of the Estate of Trevor Price - Deceased) v John Greaves Hilder", Case Analysis (1984). Civil Appeal 68 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/114/eng@1984-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.