Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. NAI.210 of 1998 (84/98UR)

BARCLAYS BANK OF KENYA LIMITED vs COME TO AFRICA SAFARIS LIMITED [1998] KECA 95 (KLR)

Court of Appeal
8 September 1998
430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a judge should accept a lawyer's unchallenged explanation for missing a hearing, and that a criminal acquittal proves nothing in a civil case.

What this practically means

#

Executive summary

#
This is a short interlocutory ruling of the Court of Appeal at Nairobi in a civil application by Barclays Bank of Kenya Limited, the plaintiff whose claim was dismissed ex parte by Kuloba J in the High Court after its counsel, Mr Namachanja, did not attend the hearing fixed for 6th and 7th May 1998. The judge refused to set aside the dismissal, rejecting counsel's explanation for non-attendance; the defendant's counterclaim was also dismissed for want of a witness. Before the Court of Appeal, the respondent did not dispute counsel's explanation but argued that her client had been acquitted of criminal charges arising from the same facts. The court held that acquittal has little bearing on a civil suit, only a conviction being prima facie evidence of liability. It framed the sole issue as whether the applicant had an arguable appeal, and found there was one, since the judge should have accepted the unchallenged explanation for non-attendance. On the nugatory question, the court regarded it as moot because an earlier injunction in the applicant's favour had fallen away with the dismissal of the claim. The court allowed the application in terms of the first prayer and ordered that costs of the application be costs in the appeal. The ruling binds subordinate courts and the High Court on the weight to be given to an unchallenged explanation for counsel's non-attendance and on the limited evidentiary effect of an acquittal in civil proceedings.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal against the dismissal of its claim and the refusal to set aside the ex-parte dismissal
  2. 2.Whether the appeal, if successful, would be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal

Holding

The applicant had an arguable appeal because the judge ought to have accepted counsel's unchallenged explanation for non-attendance

Reasoning

The court confined itself to the single threshold question under rule 5(2)(b): whether the appeal was arguable. It found the judge below erred in rejecting an explanation for counsel's non-attendance that was not disputed by the respondent, and on that basis the appeal was arguable, justifying the relief sought.

p. 2
02

Effect of criminal acquittal on a civil claim

Holding

Acquittal has little bearing on a civil suit; only a conviction is prima facie evidence of liability

Reasoning

The respondent argued that her client's acquittal on criminal charges arising from the same facts assisted her position. The court rejected this, holding that acquittal does not establish civil liability, whereas a conviction would be prima facie evidence of it. The point was therefore of no assistance to the respondent.

p. 2
03

Whether the appeal would be rendered nugatory

Holding

The nugatory question was a moot point given the prior injunction had lapsed with the dismissal of the claim

Reasoning

The court noted that an injunction had earlier been granted to the applicant in the superior court, but that order was no longer in force since the plaintiff's claim stood dismissed. In those circumstances the nugatory-ness inquiry did not arise for determination, and the court granted only the first prayer.

Legal principles established

#
  • An acquittal in criminal proceedings is not evidence of liability in a civil suit; only a conviction is prima facie evidence of civil liability
  • An unchallenged explanation by counsel for non-attendance at a hearing ought to be accepted when considering whether to set aside an ex-parte dismissal

Court orders

#
  1. 1.The application is allowed in terms as prayed in the first prayer before the court
  2. 2.Costs of the application shall be costs in the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (inherent in the application for stay/injunctive relief pending appeal; the judgment does not expressly state the provision)

Relief refused

#

Relief beyond the first prayer (including any order on the nugatory question)

The court found the nugatory point moot and granted only the first prayer

p. 2

Costs

Costs of this application shall be costs in the appeal

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.

The simple issue before us is as to whether the applicant has an arguable appeal and there is in our view an arguable appeal.
p. 2Arguability test on interlocutory application
Only a conviction is Prima facie evidence of liability in a civil suit.
p. 2Effect of criminal acquittal on civil liability
Considering all the aspects of this application we allow the same in terms as prayed in the first prayer before us. Cost of this application shall be costs in the appeal.
Final orders

Issues in the judgment

#
minor

The judgment text is corrupted in places (garbled characters and overlapping text), obscuring parts of the reasoning and the exact date line

minor

The judgment does not expressly state the statutory basis of the application (e.g. rule 5(2)(b)) nor the precise first prayer granted

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "BARCLAYS BANK OF KENYA LIMITED vs COME TO AFRICA SAFARIS LIMITED [1998] KECA 95 (KLR)", Case Analysis (1998). Civil Application No. NAI.210 of 1998 (84/98UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/95/eng@1998-09-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.