Joseph Njuguna Muniu v Medicino Giovanni
The bottom line
#Kenya's Court of Appeal confirmed that an ex parte order extending a limitation period is only provisional and can be challenged at trial.
What this practically means
#Executive summary
#Key legal issues
#Finality of an exparte s.27 limitation-extension order
An exparte order under s.27 of the Limitation of Actions Act is provisional only; the defendant must be free to contest the plaintiff's entitlement to extension at the trial
Following Cozens v North Devon Hospital Management Committee, the Court held that the s.27 procedure is exceptional: the application is by design heard ex parte, with no provision for the defendant to be heard at that stage. The trial judge must rule finally whether the plaintiff has satisfied the conditions for overcoming the time bar, and is not bound by the provisional view of the judge who granted leave. By refusing to set aside the exparte judgment, the learned Judge deprived the appellant of the opportunity to contest limitation at trial despite a defence that was not sham or frivolous.
Exercise of discretion to set aside an exparte judgment
The Judge misdirected himself in requiring an affidavit from the unknown clerical officer who failed to diarise the hearing date; the advocate's explanation was sufficient and the discretion ought to have been exercised in favour of setting aside
The Court accepted that administrative mistakes occur in the offices of busy practising advocates who depend on clerical staff. Once the Judge accepted that somebody had forgotten to enter the hearing date, it was immaterial who that person was or why. There was no evidence of recklessness, indifference or untruthfulness by Miss Janmohamed, who applied within two weeks of the judgment. Applying Evans v Bartlam, Shah v Mbogo and Patel v E.A. Cargo Handling Services, the Court found the Judge was clearly wrong and that misjustice resulted.
Interference with judicial discretion on appeal
An appellate court will not interfere with a Judge's discretion unless it is manifest from the case as a whole that the Judge was clearly wrong and misjustice has resulted
Counsel for the respondent urged that the Judge had exercised his discretion. The Court acknowledged the settled principle per Newbold P in Mbogo v Shah that an appellate court should not disturb a discretionary decision lightly. However, on the facts it was satisfied that the discretion had been exercised on a wrong basis, since the reasons for declining to set aside the judgment were unsupportable, and therefore the threshold for interference was met.
Legal principles established
#- An exparte order extending time under s.27 of the Limitation of Actions Act is merely provisional and can only be challenged at the trial of the suit, not set aside at an interlocutory stage
- Order XXI rule 22 of the Civil Procedure Rules applies only where a decree has been sent for execution to a court other than the court which passed it
- A court's discretion to set aside an exparte judgment is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, and administrative mistakes in busy advocates' offices may constitute excusable mistake
Court orders
#- 1.Appeal allowed
- 2.Order of the superior court dated 19th June 1996 set aside
- 3.Exparte judgment and decree dated 29th November 1995 and all consequential orders conditionally set aside
- 4.Suit to be heard on merits only in respect of the issue of limitation and extension of time and those issues of fact of which the onus is on the appellant
- 5.Appellant granted costs of the appeal
- 6.Appellant to pay the respondent's costs of the chamber summons of 15th December 1995 as ordered by the superior court
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No. 477 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Rules, r.96 invoked for substitution of the deceased respondent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Njuguna Muniu v Medicino Giovanni", Case Analysis (1998). Civil Appeal 216 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/9/eng@1998-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.