SALIM KHAN & ANOTHER v NATIONAL BANK OF KENYA LIMITED [1995] KECA 80 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that setting aside a validly obtained judgment requires a sworn affidavit showing a real defence, not just bare claims.
What this practically means
#Executive summary
#Key legal issues
#Nature of the application before the High Court
The judge rightly treated the applications as ones for setting aside summary judgment under Order 35 r 10 rather than for review under Order 44
The supporting affidavit showed the applicants were not seeking review on the grounds in Order 45 but setting aside of the ex-parte judgment for non-attendance. The judge, in the interest of justice, re-characterised the applications accordingly, which the Court of Appeal found correct.
Requirement of affidavit of merits
Mere allegations of a defence without an affidavit of merits do not justify setting aside a regular judgment
The judgment entered was regular; in such circumstances an affidavit of merits stating facts showing a defence on the merits is almost an inflexible rule. The appellants never attempted to demonstrate a good defence on the merits by affidavit or otherwise, so the judge rightly refused to set aside the judgment.
Interference with discretionary decisions
The Court of Appeal will not interfere with a judge's discretion unless clearly satisfied the judge was wrong
The power to set aside judgment under Order 9B r 8 is unconditional and discretionary. Applying Mbogo v Shah, the appellate court found no fault in the judge's exercise of discretion and so declined to interfere with the dismissal of the applications.
Legal principles established
#- Where a regular judgment is entered, an affidavit of merits stating facts showing a defence on the merits is required before it will be set aside
- An appellate court will not interfere with a judge's exercise of discretion to set aside a judgment unless clearly satisfied that the judge was wrong
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 266 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (provision not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SALIM KHAN & ANOTHER v NATIONAL BANK OF KENYA LIMITED [1995] KECA 80 (KLR)", Case Analysis (1995). Civil Appeal 164 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/80/eng@1995-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.