Solomon K. Njuguna v Kenya Savings & Mortgages Ltd & another [1997] KECA 398 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a litigant cannot lose their case for missing court when no one clearly told them the hearing time.
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 trial Judge properly exercised his discretion in refusing to set aside the ex parte dismissal of the appellant's suit under Order IXB rule 4(1) and the ex parte judgment on the counterclaim
- 2.Whether the appellant's suit was properly dismissed under Order IXB rule 4(1) given that he had been seen in court that morning
- 3.Whether the appellant's delay in moving to set aside the ex parte orders was inordinate and, if so, whether it was excusable
- 4.Whether setting aside the ex parte order and judgment would be an exercise in futility
Key legal issues
#Propriety of dismissal of the suit under Order IXB rule 4(1)
The dismissal was improper because the appellant had been seen in court that morning and there was no evidence he had been told the case would come up later that day.
The record was silent on why the case was adjourned to 2.30 p.m. The trial judge had been told the appellant was in court in the morning, so he could only properly dismiss the suit if satisfied the appellant had been clearly told of the later time. In the absence of such evidence the facts fell outside the purview of Order IXB rule 4(1), which targets plaintiffs showing no seriousness in pursuing their suits.
Whether the appellant's delay in applying to set aside was inordinate and excusable
The appellant satisfactorily explained his delay; the unexplained delay was his advocates' and could not be visited upon him.
All the circumstances must be considered. The appellant was a layman let down by his advocate and may not have appreciated that absence would lead to dismissal and judgment on the counterclaim. The application was ready for lodgment by 21st April 1995 but lodged in May; that delay rested with the advocates and could not properly be visited on the appellant.
Whether setting aside would be an exercise in futility given the property was with an alleged innocent purchaser
The court declined to consider the merits, holding that doing so would interfere with the jurisdiction of the trial judge who will hear the case.
Determining futility would require considering the merits of the suit and the defence to the counterclaim. Since the appeal was allowed and the ex parte orders set aside, the claim and counterclaim would proceed to hearing; expressing views on the merits would be undesirable interference with the trial court's jurisdiction.
Legal principles established
#- A court may properly dismiss a plaintiff's suit under Order IXB rule 4(1) only where it is satisfied the plaintiff was clearly told the case would be heard at a later time that day; absent such evidence the dismissal is improper.
- Order IXB rule 4(1) is directed at plaintiffs who show no seriousness in pursuing their suits, not at plaintiffs who attend court but cannot find their advocates.
- Whether delay in applying to set aside an ex parte judgment is inordinate must be determined by considering all the circumstances of the case.
- Delay attributable to a litigant's advocates cannot properly be visited upon the litigant.
- An appellate court will not interfere with the exercise of judicial discretion unless it was exercised on a wrong principle or the judge acted perversely.
Court orders
#- 1.Appeal allowed
- 2.Ex parte order dismissing the appellant's suit set aside
- 3.Ex parte judgment on the counterclaim set aside
- 4.Claim and counterclaim to proceed to hearing in the superior court
- 5.Appellant awarded costs of the appeal and of the application before the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1929 of 1988
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (statutory appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act; no specific provision quoted in the judgment)
Relief refused
#Expression of any view on the merits of the appellant's suit or his defence to the counterclaim
Expressing such a view would interfere with the jurisdiction of the judge who will eventually hear the case
Expression of any view on the jurisdiction of the superior court to entertain the application to set aside
Neither counsel commented on the issue nor was it made a ground of appeal
Costs
The appellant was awarded the costs of this appeal and the application before the superior court
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.
In the result we allow the appeal, set aside both the ex parte order of dismissal and he ex parte judgement on the counterclaim and order that the claim and the counterclaim do proceed to hearing in the superior court
In absence of such evidence the suit was improperly dismissed under O.IXB rule 4(1) of the Civil Procedure Rules, as the facts fell outside its purview
The blame for that delay rests with the advocates, and in the circumstances of this case could not properly be visited upon the appellant
this court will not interfere with the exercise of judicial discretion in such cases unless the exercise was on wrong principle or the Judge acted perversely
Issues in the judgment
#The second respondent's name appears inconsistently within the judgment - as 'Christine M. Kaigu' in the cause title and as 'Christine M. Gitau' in the body
The judgment states the application was filed in court on 3rd May 1995 but later refers to lodgment on 8th May 1995
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon K. Njuguna v Kenya Savings & Mortgages Ltd & another [1997] KECA 398 (KLR)", Case Analysis (1997). Civil Appeal 53 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/398/eng@1997-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.