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Court of AppealAllowedCivil Appeal 176 of 2007· [2008] KECA 62 (KLR)

OMAR SHARRIF T/A KEMCO AUTO V FREIGHT FORWARDERS LIMITED & ANOTHER [2008] KECA 62 (KLR)

Court of Appeal of Kenya
19 November 2008
ROR.S.C OmoloPhilip Kiptoo TunoiP.K. TunoiJOJ.W. Onyango Otieno
3,855 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a cargo claim, ruling judges cannot dismiss a suit for missed document disclosure unless deliberate non-compliance is proven with proper evidence.

What this practically means

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Executive summary

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The appellant, Omar Sharrif trading as Kemco Auto, sued Freight Forwarders Limited and Console Base Limited for the loss of imported cargo allegedly caused by their negligence. The second respondent applied for discovery of documents, including the Customs Clean Report of Findings and letters from the Customs and Excise Department, and sought dismissal of the suit if discovery was not made. On 9th February 2007 Sergon J allowed discovery under prayer 1(c), gave the appellant 21 days to comply, but expressly refused prayer 2, which sought dismissal in default. The appellant filed an affidavit on 22nd February 2007 discovering twelve documents, explaining that the CCRF was not in his possession because the goods were locally inspected. At a mention on 14th March 2007, set only for further directions, counsel for the respondents orally sought dismissal, and on 30th March 2007 the Judge dismissed the suit for willful disobedience of the discovery order. The Court of Appeal held that the Judge had definitively disposed of prayer 2 on 9th February 2007 and could not revive it on an oral application without a fresh notice of motion; in purporting to do so he acted out of jurisdiction. The Court further held that dismissal requires established willful default, proved by proper evidence, and that a litigant must not be precluded from pursuing a claim unless non-compliance was intentional. The appeal was allowed, the dismissal order set aside, the suit restored to hearing, and the costs of the appeal awarded to the appellant.

Key legal issues

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01

Whether a refused prayer for dismissal could be revisited on an oral application

Holding

The Judge had definitively refused prayer 2 on 9th February 2007; he could not overrule his own decision orally without a proper fresh application, and in purporting to do so he acted out of jurisdiction.

Reasoning

The ruling of 9th February 2007 specifically stated the Judge would not allow prayer 2. If he intended to defer the decision he would have said so expressly. Since prayer 2 had been disposed of, any dismissal for non-compliance had to be sought by notice of motion properly brought, allowing evidence on whether discovery was complied with and whether any non-compliance was willful. Entertaining an oral application to reverse his own ruling was beyond jurisdiction and an improper exercise of discretion.

p. 5
02

Whether willful default was established before dismissal for non-compliance with discovery

Holding

No: the appellant had discovered two of the documents and sworn the CCRF was not in his possession; willfulness had to be established by proper evidence on a proper application.

Reasoning

The appellate authorities cited establish that a litigant should not be precluded from pursuing a claim unless failure to comply with a discovery order was willful, meaning intentional as opposed to accidental, and that the penalty of dismissal should be imposed only in extreme cases and as a last resort. Partial compliance and a sworn explanation that a document was never issued to the party precluded a finding of willful disobedience without inquiry and evidence.

p. 6

Legal principles established

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  • A court that has refused a prayer for dismissal for non-compliance with a discovery order cannot revive and allow it later on an oral application without a fresh, properly brought application; doing so is acting out of jurisdiction.
  • Dismissal of a suit for non-compliance with a discovery order requires that the non-compliance be willful, established by proper evidence on a proper application.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge delivered on 30th March 2007 dismissing the suit is set aside
  3. 3.The suit is restored to hearing according to law
  4. 4.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder X rules 11, 13, 20, 23
  • Civil Procedure Actsections 3A and 22

Cases cited (4)

  • Mbogo and Another vs. Shah
    (1968) EA 93
  • Hytec vs. Coventry City Council
    (1997) I WLR 1666
  • Caribbean General Insurance Ltd. vs. Frizzel Insurance Brokers Ltd.
    [1994] 2 Lloyod's Rep. 32
  • Eastern Radio Service vs. Tiny Tots
    (1967) EALR 392
On appeal from
High Court of Kenya, Mombasa
H.C.C.C No. 266 of 2003
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Civil Appeal from ruling and order of the High Court of Kenya, Mombasa)

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, "OMAR SHARRIF T/A KEMCO AUTO V FREIGHT FORWARDERS LIMITED & ANOTHER [2008] KECA 62 (KLR)", Case Analysis (2008). Civil Appeal 176 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/62/eng@2008-11-19

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