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Court of AppealDismissedCivil Application No. NAI 314 of 1999 (122/99 UR)· [1999] KECA 103 (KLR)

JOHN KIPKEMBOI KILEL vs DIAMOND TRUST BANK (K) LTD [1999] KECA 103 (KLR)

Court of Appeal
22 November 1999
ROR. S. C. OmoloAAA. M. AkiwumiSBS. E. O. Bosire
484 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop a bank from executing a judgment because the applicant lied under oath about being served with court papers.

What this practically means

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Executive summary

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This was an application to the Court of Appeal at Nairobi, under rule 5(2)(b) of the Court of Appeal Rules, for a stay of execution of a decree of the High Court (Khamoni J) in Civil Case No. 44 of 1998, pending an intended appeal. In the High Court, ex parte judgment had been entered against the applicant in default of filing a defence, and his application to vacate that judgment was dismissed with costs. Before the Court of Appeal, the applicant argued that the learned judge had erred in the exercise of his discretion. The Court, comprising Omolo, Akiwumi and Bosire, JJ.A, in a single ruling of the whole bench, found the application frivolous. It observed that the applicant had sworn on oath that he was never served with summons or given notice of the suit, yet the record showed he had personally filed a memorandum of appearance, which he could not have done absent service. The Court held that the applicant had intended to mislead the High Court, and that once the judge found the applicant less than candid, he was not obliged to consider any other grounds advanced in support of the application. The applicant was held to be undeserving of the appellate court's discretion. The application was dismissed with costs to the respondent bank. The ruling binds lower courts on the principle that candour on oath is a precondition to discretionary relief.

Key legal issues

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Whether an applicant for stay of execution under rule 5(2)(b) who has been untruthful on oath deserves the Court's discretionary relief

Holding

The application was dismissed; candour is a prerequisite to the exercise of the Court's discretion and an applicant who misleads the court on oath is undeserving of relief.

Reasoning

The applicant filed a memorandum of appearance in person, proving he had been served with summons, yet swore on oath that he was never served and had no notice of the suit. The High Court (Khamoni J) had dismissed his application to vacate the ex parte judgment. The Court of Appeal held that once the judge found the applicant less than candid, he was entitled to dismiss the application without considering other grounds, and the applicant was equally undeserving of the appellate court's discretion.

p. 2

Legal principles established

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  • A court is not obliged to consider other grounds in support of an application for discretionary relief where the applicant has been less than candid on oath.

Court orders

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  1. 1.Dismissal of the applicant's application for stay of execution with costs to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 44 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JOHN KIPKEMBOI KILEL vs DIAMOND TRUST BANK (K) LTD [1999] KECA 103 (KLR)", Case Analysis (1999). Civil Application No. NAI 314 of 1999 (122/99 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/103/eng@1999-11-22

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