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Court of AppealDismissedCivil Appeal 32 of 2008· [2009] KECA 312 (KLR)

BAKARI ALI OGADA & 245 OTHERS v UNILEVER KENYA LTD [2009] KECA 312 (KLR)

Court of Appeal of Kenya
5 June 2009
EGE. M. GithinjiPWP. N. WakiAVAlnashir Visram
1,091 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a validly filed defence can't be struck out over minor technical errors like an unsigned copy served to the other side.

What this practically means

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Executive summary

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The appellants, plaintiffs in H.C.C.C. No. 10 of 2007 before the High Court (Azangalala, J), had sought to strike out two defences filed by Unilever Kenya Ltd dated 19th February 2007 and 7th March 2007 and to enter judgment. The High Court declined, striking out the second defence while upholding the first as valid. On appeal, the appellants advanced 21 grounds, principally that the judge granted a prayer not sought, that filing two defences was an abuse of process, that the first defence was served late and unsigned contrary to Order 6 rule 1(2) of the Civil Procedure Rules, and that costs should have been awarded to them. Counsel for the appellants relied on authorities for the proposition that a court cannot grant a prayer not sought; counsel for the respondent relied on Trust Bank Ltd v Amalo Co Ltd, urging a hearing on the merits. The Court of Appeal (Githinji, Waki and Visram, JJA) unanimously dismissed the appeal. It endorsed the principle that disputes should, so far as possible, be heard on their merits without undue regard to technicalities and that pleadings should not easily be struck out absent good reason. It held that the first defence was valid since the defence filed in court was signed, the unsigned served copy causing no prejudice. Costs were held to be discretionary and the discretion below was not shown to have been misdirected. The Court affirmed the High Court ruling and made no order as to costs.

Key legal issues

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01

Striking out pleadings and determination of disputes on merit

Holding

The Court endorsed the principle that disputes should be heard on their own merits and pleadings should not be struck out save for good reason, affirming the High Court's refusal to strike out the defences

Reasoning

Relying on Trust Bank Ltd v Amalo Co Ltd and the passage from Essanji v Solanki, the Court held that errors should not deter a litigant from pursuing his rights, and that Order IX rule 1 of the Civil Procedure Rules reflects the policy that a litigant has the right to appear, file a defence and be heard before interlocutory or final judgment regardless of time limits.

p. 2
02

Validity of the first defence served unsigned

Holding

The first defence dated 19th February 2007 was valid; the unsigned copy served on the appellants caused no prejudice

Reasoning

The defence filed in court was signed; only the copy served was unsigned. The Court agreed with the High Court that this alone caused no prejudice to the appellants and gave no reason to strike out the defence.

p. 2
03

Costs as a discretionary matter

Holding

The High Court's refusal to award costs to the appellants was a proper exercise of discretion

Reasoning

The appellants argued costs should have been awarded to them. The Court held costs are discretionary and saw no reason to believe the discretion below was wrongly exercised.

p. 2

Legal principles established

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  • Courts should as far as possible hear disputes on their merits without undue regard to technicalities, and should not easily strike out pleadings without good reason
  • Service of an unsigned copy of a defence, where the filed defence is signed, causes no prejudice and is not a ground for striking out the defence

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act
  • Civil Procedure RulesOrder 6 rule 1(2)
  • Civil Procedure RulesOrder IX rule 1

Cases cited (5)

  • Wareham t/a A.f. Wareham & 2 Others v Kenya Post Office Savings Bank
    (2004) 2 KLR 91
  • Council of Human Ecology v Captain Mutinda
    Civil Appeal No. 204 of 1998 (UR)
  • Narshidas & Company Ltd v Nyali Air Conditioning & Refrigeration Services Ltd
    Civil Appeal No. 205 of 1995 (UR)
  • Trust Bank Ltd v Amalo Co. Ltd
    (2003) 1 EA 350
  • Essanji and another v Solanki
    (1968) EA at 224
On appeal from
High Court of Kenya at Milimani Commercial Court, Nairobi
H.C.C.C. No. 10 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (Civil Procedure Rules / appellate jurisdiction)

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, "BAKARI ALI OGADA & 245 OTHERS v UNILEVER KENYA LTD [2009] KECA 312 (KLR)", Case Analysis (2009). Civil Appeal 32 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/312/eng@2009-06-05

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