NJAGI KANYUNGUTI & 4 others v DAVID NJERU NJOGU [1997] KECA 108 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive a case the plaintiffs ignored for months, confirming courts won't rescue litigants who sleep on their rights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal should interfere with the superior court's discretionary refusal to set aside an ex parte judgment
- 2.Whether the appellants showed sufficient cause for their failure to attend the hearing of their suit
- 3.Whether the application to set aside the judgment, brought under the wrong provisions of the Civil Procedure Rules, was defective
Key legal issues
#Interference with discretionary jurisdiction of the superior court
The Court of Appeal declined to interfere; the judge's failure to assign full reasons notwithstanding, the material showed the appellants were undeserving of the discretion being exercised in their favour.
The onus lay on the appellants to show the superior court was clearly wrong. Although the judge did not assign full reasons as he should have, the record showed the appellants and their advocate were not diligent, had been duly served with hearing notices, and had remained silent and inactive from the July 1989 judgment until December 1989. The respondent, acting in person, had taken all essential steps. No basis existed for interference.
Correct procedural provision for setting aside an ex parte judgment
The application was incurably defective because it was brought under O. IX A rule 10 and O. XXI rule 25, whereas the power to set aside an ex parte judgment lies in O. IX B rule 8; the two provisions are not interchangeable.
The court observed at the outset that neither provision cited in the application empowers a court to set aside a judgment entered after an ex parte hearing. Although the principles under O. IX A rule 10 and O. IX B rule 8 are the same, the provisions are not interchangeable; had the Rules Committee intended that, there would be no need for both. The court nonetheless considered the appeal on the merits since the defect was not raised below.
Conduct of the litigant and advocate in seeking setting aside
The conduct of the appellants and their advocate, viewed objectively, showed they were bent on delaying the course of justice, disentitling them to the discretionary relief.
The erstwhile advocate ceased practice in 1987 but never applied under O. III rule 12 to cease acting, did not explain his steps between 1987 and July 1989, and his affidavit may have been an afterthought. The appellants did not explain their silence and inaction prior to December 1989. A court will not assist a party who has deliberately sought to obstruct or delay the course of justice.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong because of misdirection, reliance on wrong matters, failure to consider relevant matters, or a wrong conclusion on that basis.
- A court will only set aside an ex parte judgment to avoid injustice or hardship from accident, inadvertence or excusable mistake, and will not assist a litigant who has deliberately obstructed or delayed the course of justice.
- The power to set aside a judgment entered after an ex parte hearing is donated by O. IX B rule 8 of the Civil Procedure Rules, and O. IX A rule 10 is not interchangeable with it.
Court orders
#- 1.The appeal is dismissed
- 2.Costs to the respondent assessed at shs.10,000 to be paid by the appellants within 30 days, and in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 2101 of 1996
- Jurisdiction invoked
- Appellate jurisdiction over the exercise of discretionary jurisdiction by the superior court under O. IX A rule 10, Civil Procedure Rules
Relief refused
#Setting aside of the ex parte judgment of Shields, J.
The appellants and their advocate were not diligent and were bent on delaying the course of justice; they failed to show sufficient cause to deprive the respondent of the fruits of the judgment
Costs
Appeal dismissed with costs to the respondent assessed at shs.10,000 to be paid by the appellants within 30 days and in default execution to issue.
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.
I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
The power to set aside a judgment entered pursuant to an ex parte hearing of a suit is donated by O. IX B rule 8 of the Civil Procedure Rules.
The appellants were obliged to but failed to show sufficient cause for depriving the respondent of the fruits of the judgment. The respondent was entitled to justice as much as the appellants.
This appeal, therefore, fails and is dismissed with costs to the respondent which we assess at shs.10,000 to be paid by the appellants within 30 days and in default execution to issue.
Issues in the judgment
#The appeal is stated to be from H.C.C.C. No. 2101 of 1996, yet the ruling appealed from was delivered on 15th December 1989 and judgment in that suit was pronounced on 17th July 1989; the suit number year appears inconsistent with the chronology.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NJAGI KANYUNGUTI & 4 others v DAVID NJERU NJOGU [1997] KECA 108 (KLR)", Case Analysis (1997). Civil Appeal 181 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/108/eng@1997-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.