Japheth Angila v Paul Ojigo Omanga T/A Victoria View Hotel & another [2012] KECA 175 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a landlord who defies court orders and evicts unlawfully cannot later undo a default judgment without proving a real defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misdirected himself on the principles applicable to the exercise of judicial discretion in refusing to set aside the interlocutory judgment
- 2.Whether the learned Judge took into account irrelevant factors and/or omitted relevant ones which would have shown the intended defence raised triable issues
- 3.Whether the appellant raised a prima facie defence meriting trial
Key legal issues
#Principles governing setting aside default judgment
The discretion is unconditional, but a regular judgment will not ordinarily be set aside absent an affidavit of merits showing a prima facie defence with triable issues.
The Court adopted the East African authorities beginning with Harris J's test in Kimani v McConnell, as applied in Patel v EA Cargo Handling Services following Mbogo v Shah, and the English authority Evans v Bartlam. The applicant must produce evidence of a prima facie defence; the overriding concern is doing justice to the parties without fettering the wide discretion given by the Rules.
Whether the appellant's intended defence raised triable issues
It did not. The appellant knowingly breached court orders restraining eviction, used an unlicensed auctioneer, refused to return the goods, and was in contempt of court.
The appellant was plainly aware of the interim injunction and of the consent order to maintain the status quo, yet procured eviction and distress in breach of section 14(1) of Cap 301 and through an agent disqualified from holding an auctioneer's licence. Such conduct meant the defence disclosed no triable issue and the Judge's refusal to set aside the judgment disclosed no misdirection.
Appellate interference with judicial discretion
An appellate court will not interfere unless it is shown the discretion was misdirected on some matter or was clearly wrong, resulting in misjustice.
Applying the established standard, the Court found the appellant had not shown that the learned Judge misdirected himself or that it was manifest from the entire case that he had been clearly wrong. Given the appellant's contemptuous conduct and absence of a prima facie defence, the refusal to set aside the judgment was within the range of proper exercise of discretion.
Legal principles established
#- The court has an unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just, but where a regular judgment has been entered it will not usually be set aside unless the applicant shows a prima facie defence with triable issues on an affidavit of merits.
Court orders
#- 1.This appeal be and is hereby dismissed with costs to the 1st respondent
- 2.The appeal against the 2nd respondent having abated under rule 96(2) of the Court of Appeal Rules by order of 6th July 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment dismissing the appeal, holding that the discretion to set aside a default judgment was not misdirected and that the appellant raised no prima facie defence.
Accordingly, in my judgment, taking into account the interests of justice and the overriding objective being to do justice to the parties irrespective of legal technicalities, I think that this appeal should fail.p. 4
Wrote the judgment
Concurring judgment expressly agreeing with Tunoi JA and dismissing the appeal with costs to the 1st respondent.
I have had the advantage of reading in draft the judgment of Tunoi JA (as he then was). I respectfully agree with it and I have nothing useful to add. I would, like Tunoi JA, dismiss the appeal with costs to 1st respondentp. 4
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No 1740 of 2002
- Jurisdiction invoked
- Appeal to the Court of Appeal under the Court of Appeal Rules; judgment delivered under rule 32(3) of the Court of Appeal Rules following the death of Ole Keiwua, JA
Relief refused
#Setting aside the interlocutory judgment of Kshs 5,369,480 with consequential orders
The appellant was duly served, had acted in contempt of court orders, and raised no prima facie defence; the Judge's discretion was not shown to have been misdirected
Costs
Appeal dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As Githinji JA agrees, the order of the court is that this appeal be and is hereby dismissed with costs to the 1st respondent.
In the light of all the fact and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary, upon terms to be imposed.
where a regular judgment had been entered, the Court would not usually set aside the judgment, unless it was satisfied that there were triable issues which raised a prima facie defence which should go for trial.
I am satisfied therefore that the appellant did not in his defence raise any prima facie defence which could go for trial for adjudication.
the two blatantly refused to return the said goods as later ordered by the court. They were in fact in total contempt of the Court orders.
Issues in the judgment
#The coram lists three judges, but the judgment records that Ole Keiwua, JA died before judgment was delivered and the decision was delivered by two judges under rule 32(3) of the Court of Appeal Rules; the judgment as recorded therefore does not reflect a decision of the full bench that heard the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Japheth Angila v Paul Ojigo Omanga T/A Victoria View Hotel & another [2012] KECA 175 (KLR)", Case Analysis (2012). Civil Appeal No 63 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/175/eng@2012-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.