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Court of AppealPartially AllowedCivil Appeal No. 352 of 2000

SUSAN MUTHONI KAMAU vs PETER KANYUA [2002] KECA 156 (KLR)

Court of Appeal of Kenya
10 May 2002
973 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal must challenge only the specific decision named in the memorandum of appeal, and ex-parte judgments need genuine, evidenced grounds to be set aside.

What this practically means

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Executive summary

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This is a decision of the Court of Appeal at Nyeri allowing Susan Muthoni Kamau's appeal against the judgment of Juma, J of the High Court at Nyeri in H.C.C.C. No. 86 of 1991, delivered on 17th November, 1999. The dispute arose from Susan's suit in the Resident Magistrate's Court at Murang'a claiming, on the strength of an oral agreement (a deposit of Shs. 5,000/= and Shs. 215/= for forms), a declaration that she owned one-half of T.P. No. 25 in Murang'a town, an account of rent collected by Peter Kanyua, and, in the alternative, a refund of Shs. 5,215/=. On 1st March, 1990 the magistrate, hearing the suit ex-parte after Peter failed to attend, declared Susan owner of one-half of the property and ordered an account of rent; the alternative refund claim was not pursued and was abandoned. Peter's application to set aside the ex-parte judgment, founded on an alleged understanding that Susan would drop her main claim and accept a refund, was refused on 3rd December, 1991 for want of genuine grounds. Peter appealed to the High Court. Although his memorandum of appeal specified the ruling of 3rd December, 1991, the learned Judge treated the appeal as one against the judgment of 1st March, 1990, held that the magistrate had erred, and substituted judgment on the refund claim. The Court of Appeal held that the Judge erred: there was no appeal against the judgment of 1st March, 1990 and time for such an appeal had long passed; and, Susan having denied the alleged agreement, there was no material upon which the magistrate could have exercised her discretion in Peter's favour. The appeal was allowed, the High Court judgment was set aside, the magistrate's ruling was restored, and Susan received the costs of both appeals.

Questions the Court framed

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

  1. 1.Whether the appeal in the superior court was against the ruling of 3rd December, 1991 declining to set aside the ex-parte judgment, or against the ex-parte judgment of 1st March, 1990 itself
  2. 2.Whether the learned Judge of the High Court erred in considering and setting aside the magistrate's judgment of 1st March, 1990 when no appeal had been lodged against that judgment and the time for appeal had expired
  3. 3.Whether there was any material upon which the learned magistrate could have exercised her discretion to set aside the ex-parte judgment in the respondent's favour

Key legal issues

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01

Whether the learned Judge of the High Court could properly treat the appeal before him as an appeal against the ex-parte judgment of 1st March, 1990 when the memorandum of appeal specified the ruling of 3rd December, 1991

Holding

He could not. The appeal before him was against the ruling declining to set aside the ex-parte judgment; there was no appeal against the judgment itself and the time for such an appeal had long passed. In considering the judgment of 1st March, 1990 the Judge erred.

Reasoning

The memorandum of appeal lodged in the superior court specifically stated that the appeal was against the decision of 3rd December, 1991, although the grounds also alleged that the magistrate failed to consider all the evidence and did not exercise her discretion judicially. Juma, J nonetheless noted uncertainty as to what was being appealed and then proceeded to examine the judgment of 1st March, 1990 on its merits, holding that the magistrate should have entered judgment on the abandoned alternative claim. Since no appeal lay against that judgment and the time for appealing had expired, the Judge's entire approach was misconceived.

p. 2
02

Whether the respondent had made out grounds justifying the setting aside of the ex-parte judgment

Holding

No. His assertion that the appellant had agreed to drop her main claim and accept a refund of Shs. 5,215/= was denied, leaving no material upon which the magistrate could exercise her discretion in his favour; the magistrate's refusal to set aside the judgment was therefore unimpeachable.

Reasoning

The respondent's explanation for not attending court on 1st February, 1990 was that the appellant had led him to believe she would drop her main claim and accept a refund of Shs. 5,215/=. The appellant expressly denied that she ever told him she intended to discontinue her suit. With that factual assertion denied and nothing else placed before the court, the magistrate, who was not satisfied that genuine grounds existed, properly declined to set aside the ex-parte judgment. The Judge therefore had no material on which any interference with that discretionary ruling could rest.

p. 2
03

Whether the respondent was entitled to judgment in his favour in any form

Holding

No. The Court of Appeal found no basis upon which the respondent would be entitled to judgment; the only sustainable outcome was restoration of the magistrate's ruling of 3rd December, 1991.

Reasoning

Once the appeal before the superior court was properly characterised as one against the ruling refusing to set aside the ex-parte judgment, and once the respondent's grounds for setting aside were found to be unsupported, no residual basis remained for judgment in his favour. The alternative refund claim had been abandoned at the trial, so the substitution of judgment on that claim by the Judge could not stand. The Court of Appeal therefore allowed the appeal, set aside the High Court judgment and restored the magistrate's ruling, with costs to the appellant in both courts.

p. 2

Legal principles established

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  • An appeal in the superior court must be confined to the decision identified in the memorandum of appeal; where the appeal is against a ruling refusing to set aside an ex-parte judgment, the appellate court cannot entertain it as an appeal against the ex-parte judgment itself, no appeal having been lodged against that judgment within time
  • A judge who determines an appeal as though it were against a judgment that was never appealed against errs in law
  • A court will not set aside an ex-parte judgment in the absence of genuine grounds supported by material; a bare allegation of an agreement to discontinue the suit, denied by the plaintiff, provides no material for the exercise of the court's discretion

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court (High Court) dated 17th November, 1999 set aside
  3. 3.Ruling of the learned magistrate delivered on 3rd December, 1991 restored
  4. 4.Appellant to have the costs of this appeal as well as the costs of the appeal in the superior court

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 86 of 1991
Jurisdiction invoked
Not expressly stated in the judgment; the Court of Appeal exercised its appellate jurisdiction over the judgment of the High Court of Kenya at Nyeri (Juma, J), which had itself heard an appeal from the Resident Magistrate's Court at Murang'a

Relief refused

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The respondent's bid to overturn the magistrate's ruling of 3rd December, 1991 and obtain judgment in his favour

His claim that the appellant had agreed to drop her main claim was denied, leaving no material upon which the magistrate could exercise her discretion in his favour

p. 2

Judgment on the alternative claim for refund of Shs. 5,215/=, which the High Court had substituted for the magistrate's orders

The alternative claim had been abandoned at the trial and the Court of Appeal found no basis for any judgment in the respondent's favour

p. 2

Costs

The appellant will have costs of this appeal as well as the costs of the appeal in the superior court.

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 those circumstances we are left with no alternative but to allow this appeal, with the result that the judgment of the superior court dated 17th November, 1999 is set aside and the ruling of the learned magistrate delivered on 3rd December, 1991 is restored.
p. 2Disposition - appeal allowed, High Court judgment set aside, magistrate's ruling restored
The appellant will have costs of this appeal as well as the costs of the appeal in the superior court.
p. 2Costs of both appeals awarded to the appellant
There was no appeal against the judgment of 1st March, 1990. Time for lodgement of such appeal had long passed.
p. 2Scope of appeal - no appeal lay against a judgment not appealed within time
It is clear therefore, that the learned Judge considered the appeal before him as an appeal against the judgment of the learned magistrate and not against her ruling whereby she declined to set aside that judgment. In doing so the learned Judge erred.
p. 2Error of the superior court in entertaining an appeal against a decision not appealed
In the circumstances there was no material upon which the learned trial magistrate would have exercised her discretion in the respondent's favour.
p. 2Setting aside an ex-parte judgment requires genuine grounds supported by material
We have considered the respondent's appeal to the superior court and to our minds there is no basis upon which the respondent would be entitled to judgment in his favour.
p. 2No basis for judgment in the respondent's favour

Issues in the judgment

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minor

The sentence recording the fate of the alternative refund claim is garbled in the source text (apparent typographical/OCR corruption interleaving two sentences); it appears to decode as 'was not pursued and was in fact abandoned' running into 'The respondent applied to have the ex-parte judgment set aside, on'

minor

The signature block is garbled, with the judges' initials scattered around the signature lines; the coram reads 'SHAH, BOSIRE & O'KUBASU, JJ.A.' and the initials in the panel names have been reconstructed from that block as A. B. Shah, S. E. O. Bosire and E. O. O'Kubasu

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, "SUSAN MUTHONI KAMAU vs PETER KANYUA [2002] KECA 156 (KLR)", Case Analysis (2002). Civil Appeal No. 352 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/156/eng@2002-05-10

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