Sheikh t/a Hasa Hauliers v Highway Carriers Limited
The bottom line
#Kenya's Court of Appeal ruled that a judge's personal remarks about a lawyer's firm amounted to bias, and a haulier got its day in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a court properly exercised its discretion in refusing to set aside a default judgment.
- 2.Whether a judge's personal opinion about advocates and consideration of extraneous matters affected the fairness of a decision made by the judge.
- 3.Whether judicial bias could be inferred from a judge's negative remarks about an advocate.
- 4.Whether a judge could take procedural steps on their own motion without a formal application from the parties.
- 5.What factors should a court consider when deciding whether to grant leave to appeal?
- 6.Whether an appellate court had the power to correct procedural injustices in lower courts.
Key legal issues
#Whether the High Court properly exercised its discretion in refusing to set aside the default judgment
No. The ruling was vitiated by extraneous matters and derogatory remarks about the appellant's advocates, and the judge entered judgment on his own motion without an application, so the discretion was not exercised judicially.
The majority found the ruling was dominated by the judge's personal experiences with and criticisms of the appellant's firm of advocates rather than a fair evaluation of the application. Those remarks could not be expunged without destroying the ruling. The judge also entered judgment of his own motion although a defence was on the file. These errors caused a miscarriage of justice and warranted appellate interference with the discretion.
Whether judicial bias could be inferred from the judge's negative remarks about the appellant's advocates
Yes, per the majority. The remarks about the firm's dilatory tactics, inefficiency and alleged deliberate omission of the filing cheque were extraneous, unfounded by evidence, and tainted the ruling, rendering it unfair.
The judge relied on his own past dealings with the firm in other matters and on observations about postal times for which no evidence was adduced. The majority held such innuendo and derogatory remarks were unfortunate, influenced the ruling, and reflected bias against the appellant's advocates to the appellant's prejudice. Apaloo JA dissented, holding the remarks were relevant experience and legitimate judicial observation, not bias.
Whether the defence raised triable issues warranting leave to defend
Yes. The defence and counterclaim raised possible triable issues which ought to be heard on merit, and the appellant should not be shut out.
The court examined the defence to the balance of the claim, including the agency allegation, the claim that the plaintiff had been paid in full, and the counterclaim for services rendered in Sudan. It held these set up possible defences the appellant could rely on at hearing, and that whether he would succeed could not be adjudicated on the application. The purpose of the application was to get the defence on record so the suit could proceed to hearing on its merit.
Whether a litigant should suffer for his advocate's mistakes
No. Procedural rights of litigants should not be prejudiced due to their advocate's failures; any censure should fall on the advocate, not the litigant.
The court reasoned that the suit is between two litigants and counsel merely puts the client's case forward; the litigant may be unaware of his advocate's failures and is at the advocate's mercy. Although agency law binds a principal to his agent's acts, in administering justice the litigant should not suffer for the advocate's mistakes and errors. The court should instead choose an appropriate punishment for the advocate without injuring the litigant's rights.
Whether leave to appeal was necessary
No. Leave was not required under order 42 rule 1(1)(a) of the Civil Procedure Rules, so the refusal of leave was erroneous and should not have been a ground of appeal.
Both Gachuhi JA and Masime AG JA noted that the judge below refused an application for leave to appeal although no leave was necessary under order 42 rule 1(1)(a). Masime AG JA treated this refusal as one of the incidents indicating bias against the appellant's counsel. Gachuhi JA observed that the unnecessary refusal should not necessarily have been made a ground of appeal.
Legal principles established
#- A judge's discretion to set aside a default judgment must be exercised to do justice to the parties and is not fettered by conditions the court imposes on itself.
- A ruling vitiated by extraneous matters and derogatory remarks directed at a party's advocates cannot stand; judicial bias may be inferred from such remarks.
- A litigant should not suffer for the mistakes and errors of his advocate; if the court wishes to punish an advocate it must do so without injuring the litigant's rights.
- A court should not take procedural steps such as fixing a case for mention or entering judgment on its own motion without a formal application by a party.
Court orders
#- 1.Appeal allowed with costs.
- 2.Costs in the High Court awarded to the respondent in this appeal.
- 3.Order of the High Court dismissing the application set aside and the judgment entered for the plaintiff for the balance of the claim set aside, substituted with an order granting the defendant leave to defend the balance of the claim.
- 4.Defence already filed to be taken as filed subject to payment of fees and to be served out of time within 14 days from the date of judgment (per Gachuhi JA).
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the lead judgment. Held the High Court erred in dismissing the application to file a defence out of time; the judge's derogatory remarks about the appellant's advocates and prior experiences with the firm reflected judicial bias and vitiated the ruling; the trial court also erred in entering judgment on its own motion without a formal application. Allowed the appeal with costs.
The whole ruling appealed against was vitiated by extraneous matters and particularly derogatory remarks of hatred directed to the firm of advocates which remarks were uncalled for.p. 8
Wrote the judgment
Dissented. Held the trial judge did not misstate the governing principles; the remarks about the advocate's firm were relevant experience, not bias; the judge was entitled to take judicial notice of notorious facts such as postal times; the decision below was eminently just and appellate interference was precluded. Would have dismissed the appeal with costs.
I think on the facts, Aragon J exercised his discretion correctly or at the very least, the appellant has failed to show that he exercised it unjudicially. Accordingly, I do not feel it right to substitute my own discretion for his.p. 12
Wrote the judgment
Agreed with Gachuhi JA. Held the ruling was a criticism of the conduct of the appellant's counsel rather than a consideration of the application; the judge fixed the case for mention and entered judgment of his own motion without application; the refusal of unnecessary leave to appeal indicated bias; these matters vitiated the exercise of discretion. Would allow the appeal and extend time for filing the defence.
On consideration of these matters I am of the respectful view that they have far reaching effect on and indeed vitiate the exercise of discretion of the Learned Judge.p. 14
- On appeal from
- High Court
- Jurisdiction invoked
- First appellate jurisdiction over a High Court ruling (appeal against exercise of discretion), with leave to appeal unnecessary under order 42 rule 1(1)(a) of the Civil Procedure Rules
Relief refused
#Costs of the High Court application to the appellant
The majority awarded the costs of the High Court application to the respondent despite allowing the appeal.
Costs
Appeal allowed with costs to the appellant; costs in the High Court awarded to the respondent in this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.
The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or errors, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to abstract or delay the cause of justice.
It seems to me that a reasonable approach to the application of these rules to any particular case would be for the court, first to ask itself whether any material factor appears to have entered into the passing of the ex-parte judgment which would not or might not have been present had the judgment not been ex-parte
As Masime Ag JA agrees, the order now is that the appeal is allowed with costs. Costs in the High Court is awarded to the respondent in this appeal.
I would set aside the order of the High Court dismissing the application and the judgment entered for the plaintiff for the balance of the claim and substitute thereof with an order granting the defendant leave to defend the balance of the claim
Issues in the judgment
#Conflicting dates for entry of the first default judgment
Conflicting dates for entry of the first default judgment
Conflicting figures for the balance of the claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh t/a Hasa Hauliers v Highway Carriers Limited", Case Analysis (1988). Civil Appeal 46 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/139/eng@1988-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.