Kenya Commercial Bank Ltd v Kipsang Sawe Sisei (Civil Appeal 53 of 2002) (Civ) [2005] KECA 203 (KLR)

The Court invoked the established decisions of the Court of Appeal, including Mbogo v Shah, The Francois Vieljeux and Mrao Ltd v First American Bank, as stating the standard for appellate interference with discretionary orders. It found at least three misdirections: misapprehending the scope of the 8th November order, failing to evaluate the explanations for the non-filing of replying papers, and disregarding the equitable principles governing injunctions. Any one of these justified interference with the discretionary dismissal of the set-aside application.

The superior court had dismissed the set-aside application partly because it considered its own 8th November order merely stopped the sale scheduled for 23rd October 2001, leaving the Bank free to issue valid notices and exercise its statutory power of sale. The Court of Appeal rejected that reading by reference to the terms of the order actually granted, which tracked prayer 3 of the Chamber Summons of 19th October 2001 and restrained the Bank until the hearing and determination of the suit. Grounds 1, 2, 3 and 9 were therefore held indefensible.

Rule 16 of Order L required a respondent intending to oppose an application to file and serve a replying affidavit or grounds of opposition not less than three clear days before the hearing, failing which the application could be heard ex parte. The Bank's counsel explained the omission by the auctioneer's late instructions and sought an adjournment to file a replying affidavit, an application counsel for the respondent confirmed before the Court of Appeal. The judge neither evaluated those reasons nor gave reasons for dismissing the motion, and overlooked the promptitude of the set-aside application.

The Court held that the judge never considered the well-known principles for granting injunctions. Although the Bank had not filed replying papers within the period fixed by Order L rule 16, its counsel was physically present on the hearing date, sought an adjournment, and moved to set the order aside within a week. Granting, as unopposed, an interlocutory injunction of indefinite duration on such a record offended the equitable character of the remedy and the policy, expressed in Order XXXIX rules 3(1) and 3(2), against sustaining ex parte injunctions beyond fourteen days except in urgent cases.