K v K [1993] KECA 63 (KLR)
The bottom line
#Kenya's Court of Appeal refused to rescue a wife who deliberately delayed her divorce case for two years, ruling that courts won't reward delay tactics.
What this practically means
#Executive summary
#Key legal issues
#Appellate interference with exercise of trial court discretion
The Court of Appeal will not upset a trial judge's exercise of discretion unless it was exercised unjudicially; the Mbogo v Shah principles, including consideration of prior and subsequent facts and the respective merits, govern.
The court applied the Newbold P formulation in Mbogo v Shah, examining the facts preceding the judgment and those arising after it, and the relative merits of the parties. The husband's account of the panga incident of 29th August 1980 was believed by the trial judge and constituted cruelty in law. The wife's explanation was improbable. On the merits, the trial judge's discretion was properly exercised.
Counsel's mistake as a ground for setting aside an ex parte judgment
A mere mistake of counsel in recording a hearing date, where the date was fixed in court in the presence of counsel and clerks, is not an excusable mistake; the party seeking relief must also be deserving on conduct and merits.
Gachuhi JA held that the cardinal rule is Mbogo v Shah, including the de Lestang VP dictum that the court will not assist one who deliberately obstructs or delays justice. The appellant's conduct showed she was not serious in prosecuting her petition, seeking to preserve the marriage only for economic security. Her claim of a genuine date mix-up did not outweigh two years of deliberate delay tactics.
Whether the husband should be penalised by setting aside a decree validly obtained
Where the respondent made no mistake and validly obtained the decree nisi in the absence of the appellant, it would be unjust to penalise him by setting it aside.
Since the respondent obtained his decree nisi on his cross-petition in the absence of the appellant through no fault of his own, having taken all necessary steps to fix the hearing and opposed adjournments, he should not be penalised. The judge's discretion in his favour, including excusing his own adultery, was exercised judicially and the Court of Appeal would not disturb it.
Legal principles established
#- A trial court's discretion to set aside an ex parte judgment must be exercised in light of all facts and circumstances, both prior and subsequent, and the respective merits of the parties.
- A court will not exercise its discretion to set aside an ex parte judgment in favour of a party who has deliberately sought to obstruct or delay the course of justice.
- Not every mistake made by counsel should be excused so as to set aside an ex parte judgment; the appellant must show the judge was wrong or misdirected himself.
Court orders
#- 1.The appeal stands dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- High Court Divorce Cause No 51 of 1987
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over a ruling of the High Court in a divorce cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "K v K [1993] KECA 63 (KLR)", Case Analysis (1993). Civil Appeal No 155 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/63/eng@1993-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.