Abdishukri Maalim Ahmed Yussuf Kulmei King v The Commissioner of Customs and Excise The Kenya Revenue Authority
The bottom line
#Kenya's Court of Appeal ruled that a court cannot ignore a defendant's failure to file a defence or grounds of opposition when deciding whether default judgment should be entered.
What this practically means
#Executive summary
#Key legal issues
#In what circumstances will the Court of Appeal interfere with a trial judge's exercise of discretion?
Only where the judge misdirected himself in some matter and as a result arrived at a wrong decision, or where it is manifest from the case as a whole that the judge was clearly wrong and misjustice resulted; the appellate court reviews, it does not substitute its own discretion.
The court adopted the settled Mbogo v Shah formulation as the governing test and stressed that an appellate court's function is to review, not to entertain an appeal inviting substitution of its own discretion. It cautioned that the 'wholly wrongly exercised' formulation comes perilously close to substitution and is not permissible, and criticised the tendency of the profession to treat a discretionary ruling as a mere conduitpipe to the Court of Appeal. The test was then applied to the ruling under appeal.
Whether the Commissioner of Assize misdirected herself in refusing leave to enter judgment in default of appearance and defence.
Yes. She failed to consider or give effect to Order 50, which required grounds of opposition to be filed, and overlooked that no defence was filed at all; her discretion was therefore based on wrong considerations and the appeal had to succeed.
The respondents filed neither grounds of opposition under Order 50 nor defences within the prescribed time under Order 8 Rule 1(2); nothing was heard from them until an appearance was filed on 4th October 1999, and no defence was on record even at the hearing of the appeal. No explanation or material was placed before the Commissioner to justify excusing these omissions. These were significant facts which she ought to have taken into account, and ignoring them meant her discretion rested on wrong considerations.
Whether the plaint adding the appellants as second and third plaintiffs was irregularly filed.
No. Joinder of parties is allowed as of right subject to the court's discretion; the amendment was technical, caused no prejudice, and the respondents took no timely objection - though the court found it unnecessary to decide this ground.
The court stated that joinder is allowed as of right and that addition of parties should be necessary for determination of the real matter in dispute. Though the heading of the amended plaint may have been bad, no new suit was filed; the respondents were under no misapprehension as to the identity of the added plaintiffs and raised no objection at the earliest moment, and the defect would have been cured had it been taken in a defence. The court agreed with Hayanga, J.'s leave ruling, against which no appeal was preferred. Because the appeal succeeded on the discretion grounds, this holding was expressed as not strictly necessary and is therefore persuasive rather than ratio.
Legal principles established
#- An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself in some matter and as a result arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and misjustice has resulted.
- On an appeal against a discretionary decision, the appellate court's function is to review the exercise of discretion, not to substitute its own discretion for that of the judge.
- A court exercising discretion on an application for leave to enter default judgment must take into account the respondent's failure to file grounds of opposition and the absence of any defence; ignoring these mandatory procedural defaults renders the discretion wrongly founded.
- Joinder of parties is allowed as of right, subject to the discretionary power of the court, and the addition or substitution of parties should be necessary for the determination of the real matter in dispute.
Court orders
#- 1.Appeal allowed.
- 2.The appellants' application made to the superior court and dated 24th March, 1999 allowed with costs.
- 3.Leave granted to the appellants to enter judgment in default of appearance and defence against the second and third respondents jointly and severally as prayed in their plaint.
- 4.The suit against African Banking Corporation (the Bank) to be disposed of in the superior court on a priority basis.
- 5.The appellants awarded the costs of this appeal and of the application in the superior court against the respondents.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 115 of 1998
- Jurisdiction invoked
- No constitutional or statutory jurisdictional provision is cited in the judgment; the appeal was pursued with the leave of the superior court at Mombasa against the High Court ruling of 26th October 1999.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdishukri Maalim Ahmed Yussuf Kulmei King v The Commissioner of Customs and Excise The Kenya Revenue Authority", Case Analysis (2000). Civil Appeal No. 245 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/251/eng@2000-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.