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Court of AppealDismissedCivil Appeal 10 of 1999

LAWI KIPLAGAT v DELPHIS BANK LIMITED [1999] KECA 203 (KLR)

Court of Appeal of Kenya
22 October 1999
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that courts can use their inherent powers under section 3A of the Civil Procedure Act to correct their own errors, even when procedural rules weren't perfectly followed.

What this practically means

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Executive summary

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The respondent bank had sued the appellant for accrued interest of K.Shs. 1,194,330 on a loan whose principal had been repaid. On 20th May 1998, when the plaintiff's counsel and witnesses were absent, Kuloba, J. refused an adjournment and, no evidence being called, dismissed the claim for lack of proof. The bank's application under Order IXA rule 10 and Order IXB rules 4 and 8 to set aside that judgment was refused on 26th June 1998. The bank then applied for review under Order XLIV rules 1 and 2 and Order L rule 11, arguing an error apparent on the face of the record in that the ruling had ignored section 3A of the Civil Procedure Act and other enabling provisions. Kuloba, J. granted the review on 3rd December 1998, setting aside his refusal so the parties could be heard on the enabling provisions. The appellant appealed on three grounds: that no basis existed in law for the review, that there was no error on the face of the record, and that the order sought to be reviewed had not been extracted. The Court of Appeal (Gicheru, Akiwumi and Shah, JJA) dismissed the appeal. It held that although the enabling provisions had not been set out in the original application, the inherent jurisdiction under section 3A comes to the aid of courts where the ends of justice are in issue, and that failure to state provisions under Order L rule 12 does not invalidate an application. The judge's failure to consider section 3A was an error of law on the face of the record justifying review. The Court declined to determine the extraction ground because it was jurisdictional, should have been raised in limine, and was never argued below. Costs were awarded to the respondent.

Questions the Court framed

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

  1. 1.Whether the High Court judge properly reviewed his own ruling of 26th June 1998 refusing to set aside the judgment of 20th May 1998 on the ground of an error apparent on the face of the record
  2. 2.Whether reliance on section 3A of the Civil Procedure Act and 'all enabling provisions of law', though not set out in the original application, could sustain the review
  3. 3.Whether the appeal could be determined on the ground that the respondent had not extracted the order it sought to review

Key legal issues

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01

Whether the review of the ruling refusing to set aside the judgment was properly founded on an error apparent on the face of the record

Holding

Yes. The judge's failure to consider section 3A of the Civil Procedure Act and other enabling provisions in his ruling of 26th June 1998 amounted to an error of law on the face of the record, justifying review.

Reasoning

The original application to set aside invoked section 3A and 'all enabling provisions of law', but the ruling made no reference to them. When the review application drew section 3A specifically to the judge's attention, he was entitled to find an obvious error on the face of the record and set aside his refusal so the parties could be heard on the enabling provisions.

p. 3
02

Whether failure to cite the enabling provisions in the application to set aside defeated the respondent's position

Holding

No. Although the enabling provisions were neither set out in the application nor submitted on, section 3A's inherent jurisdiction saves the position, and non-statement of provisions under Order L rule 12 does not invalidate an application.

Reasoning

The Court acknowledged the omission but held that where the ends of justice are in issue, the inherent powers under section 3A come to the aid of the court. Order L rule 12 requires provisions to be stated, but failure to do so does not invalidate the application.

p. 3
03

Whether the Court would determine the ground that the order sought to be reviewed had not been extracted

Holding

No. The ground was not raised in submissions before the High Court, was not addressed in the ruling, and should have been raised in limine; the Court declined to adjudicate on it either way.

Reasoning

The complaint appeared as a ground of opposition in the High Court but was never the subject of submission at the review hearing and was not referred to in the ruling. Because it touched on the jurisdiction to review, it should have been raised and decided at the outset; in the wider interests of justice the Court declined to determine it.

p. 3

Legal principles established

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  • Where the ends of justice are in issue, the inherent powers of the superior court and subordinate courts under section 3A of the Civil Procedure Act come to their aid, notwithstanding non-compliance with procedural rules
  • Failure to state the Order, rule or statutory provision under which an application is made, as required by Order L rule 12, does not invalidate the application
  • A judge's failure to consider an enabling provision (such as section 3A) in a ruling may constitute an error of law apparent on the face of the record justifying review
  • A jurisdictional objection to a review application must be raised in limine and adjudicated upon forthwith; if not raised, an appellate court may decline to determine it

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1127 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory order of the High Court in civil proceedings (no specific constitutional/statutory provision stated in the judgment)

Relief refused

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The appellant's appeal against the order permitting review of the ruling refusing to set aside the judgment of 20th May 1998

The Court found the appeal without merit; the judge was entitled to find an error of law on the face of the record

p. 3

Adjudication of the appellant's third ground (failure to extract the order sought to be reviewed)

The ground was not raised in submissions before the High Court and should have been raised in limine; the Court declined to determine it

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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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 think that the appellant’s appeal is without merit and the same is dismissed with costs to the respondent.
p. 3Final orders - dismissal of appeal
in civil jurisdiction in the superior court or in the subordinate court where the ends of justice is in issue, the inherent powers of those courts to do justice as provided by section 3A of the Civil Procedure Act really comes to aid.
p. 3Inherent jurisdiction under section 3A
Ordinarily, the provisions of Order L rule 12 of the Civil Procedure Rules require that every Order, rule or other statutory provision under or by virtue of which any application is made must be stated, but failure to do so does not invalidated any such application.
p. 3Effect of failure to cite enabling provisions
Indeed, that was an error of law on the face of the record in the application to set aside his judgment dated 20th May, 1998. The learned Judge cannot therefore be faulted in reviewing his decision in which he had refused to set aside the aforesaid judgment.
p. 3Error on the face of the record justifying review
It is an issue that should have been raised in limine and adjudicated on forthwith.
p. 3Jurisdictional objections must be raised in limine

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the ruling refusing to set aside the judgment - the review application is described as seeking review of a ruling 'dated 26th June, 1998' while the opening passage and the appeal-from description refer to a ruling dated 3rd December, 1998; the chronology of the two rulings is not fully reconciled on the face of the judgment

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, "LAWI KIPLAGAT v DELPHIS BANK LIMITED [1999] KECA 203 (KLR)", Case Analysis (1999). Civil Appeal 10 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/203/eng@1999-10-22

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