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Court of AppealDismissedCivil Appeal No. 83 of 2001· [2008] KECA 52 (KLR)

J.S.K. (Cargo) Limited v Kenya Airways Limited [2008] KECA 52 (KLR)

Court of Appeal of Kenya
21 November 2008
SBS.E.O. BosireEOE.O. O'KubasuJAJ. Aluoch
1,550 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a company whose director was present in court was not 'absent', so it couldn't use the usual rule to revive its dismissed case.

What this practically means

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Executive summary

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The appellant, J.S.K. (Cargo) Limited, sued Kenya Airways Limited for damages and a liquidated sum of Kshs. 27,123,583.20 arising from an alleged aircraft lease. When the suit was called for hearing on 9th May 2000, the appellant's advocate sought an adjournment and then leave to cease acting; the Managing Director, James Samuel Kinyanjui, who was present, asked for an adjournment citing illness following a carjacking. The court declined, Mr. Kinyanjui refused to testify, and the suit was dismissed on the respondent's informal application. A formal application under Order IXB rule 8 of the Civil Procedure Rules to set aside the dismissal was also dismissed, prompting this appeal. Before the Court of Appeal the appellant's sixteen grounds of appeal were not argued; counsel appeared only to seek adjournments, and Mr. Kinyanjui addressed the court himself, contending that the High Court had improperly proceeded despite a pending interlocutory application. The respondent argued the Order IXB rule 8 application was incompetent because the suit was not dismissed for non-appearance. The Court of Appeal held that Order IXB rule 8 applies only to dismissals for non-attendance; since a corporation acts through its officers and the Managing Director was present, the dismissal was for failure to adduce evidence, not non-attendance, and the rule 8 application did not lie. Following Dover Insurance Agency and Ochola, the Court affirmed the High Court and dismissed the appeal with costs, also admonishing the practice of advocates appearing on briefs for limited purposes.

Key legal issues

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01

Scope of Order IXB rule 8 of the Civil Procedure Rules

Holding

The rule applies only to setting aside judgments or dismissal orders made for non-attendance of a party; where the plaintiff's principal officer was present and the suit was dismissed for failure to testify, an application under Order IXB rule 8 did not lie and was properly dismissed.

Reasoning

The court read the heading of Order IXB as limiting rule 8 to dismissals for non-attendance. Order V rule 2 recognises that service on a secretary, director or other principal officer is service on a corporation, and the Court in Ochola held that a corporation acts through its officers. Since the Managing Director was present when the suit was dismissed, the corporation attended; the dismissal was for failure to adduce evidence, outside Order IXB rule 1 and therefore outside rule 8. Following Dover Insurance Agency, the setting-aside application was incompetent.

p. 2
02

Adjournments and advocates holding briefs for limited purposes

Holding

Adjournments are a matter of judicial discretion; the growing practice of advocates appearing on a brief only for limited purposes should stop, and counsel who holds a brief must be prepared to go the full mile.

Reasoning

The court noted that at the hearing of the appeal Mr. Thangei appeared solely to seek an adjournment without disclosing reasons. The court held that a court may decline an adjournment without injustice arising where counsel withdraws because his instructions are limited, and admonished the practice of limited-purpose appearances as one that should stop.

p. 2

Legal principles established

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  • Order IXB rule 8 applies only to judgments or dismissal orders made for non-attendance; a dismissal for failure to adduce evidence cannot be set aside under that rule.
  • A corporation acts through its officers; the presence of a principal officer such as a Managing Director or Chairman constitutes attendance by the corporation in legal proceedings.
  • An advocate holding another advocate's brief must be prepared to conduct the matter fully, and a court declining an adjournment should not be made to feel injustice is worked where counsel withdraws because his instructions are limited.

Court orders

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  1. 1.The appeal was dismissed with costs to the respondent
On appeal from
High Court of Kenya at Milimani Commercial Courts
H.C.C.C. No. 1904 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the Ruling and Order of the High Court)

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, "J.S.K. (Cargo) Limited v Kenya Airways Limited [2008] KECA 52 (KLR)", Case Analysis (2008). Civil Appeal No. 83 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/52/eng@2008-11-21

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