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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 17 of 2014· [2014] KECA 176 (KLR)

Linumark Investments Limited v Diamond Shield International

Court of Appeal of Kenya
10 December 2014
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let a company defend the case but gave it 30 days to deposit the disputed money or lose the case outright.

What this practically means

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Executive summary

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This is an appeal against a ruling of the High Court at Kisumu (Chemitei, J) dated 21st January 2014, which set aside an interlocutory judgment entered on 12th November 2012 against Diamond Shield International in a claim for Kshs.38,240,000 arising from an alleged sale of brown sugar and cooking oil by Linumark Investments Limited. The appellant argued, on essentially one ground, that the learned Judge failed to exercise his discretion judiciously, particularly given that the respondent had not complied with a consent order of 30th October 2012 requiring it to deposit the claimed amount within ten days, and had never filed a defence or made any deposit. The Court of Appeal, in a unanimous judgment, restated the settled principles: the discretion to set aside a default judgment is unfettered and is exercised to do justice between the parties, considering the reasons for default, the conduct of the parties, the prima facie merits of any defence, whether delay can be compensated by costs, and that denying a hearing is a court's last resort. Applying the Mbogo v Shah standard of non-interference with discretionary decisions, the Court found no misdirection and declined to disturb the setting aside of the default judgment, noting that the respondent had disclosed a strong and arguable defence. However, the Court gave 'teeth' to the undisturbed consent order: since the High Court had not specified a period for the deposit, it used its own jurisdiction to order the respondent to deposit the claimed sum within thirty days in an interest-bearing joint account, failing which its application of 25th October 2013 would stand dismissed with costs and any defence struck out. Because the appellant succeeded only in having the order limited in time, each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Principles governing setting aside of default judgment

Holding

The discretion is unfettered and exercised to do justice between the parties, weighing reasons for default, conduct of the parties, prima facie merits of the defence, and compensability by costs

Reasoning

The Court restated the settled principles, drawing on Patel v E.A. Cargo Handling Services and Evans v Bartlam: the discretion is unfettered, exercised in the interests of justice, considering reasons for default, party conduct and its effect on the course of justice, prima facie merits of any defence, whether delay can be compensated by costs, and that denial of a hearing should be a court's last resort.

p. 2
02

Appellate interference with discretionary decisions

Holding

The Court of Appeal will not interfere unless the judge misdirected himself and arrived at a wrong decision, or was clearly wrong with a resultant miscarriage of justice (Mbogo v Shah)

Reasoning

Applying Mbogo v Shah, the Court held that where the judge considered the delay but found a strong and arguable defence and intervening factors, there was no misdirection. The judge had an unfettered discretion and exercised it properly on stated reasons, so the appellate court would not substitute its own view of how the discretion should have been exercised.

p. 3
03

Effect of a consent order remaining undisturbed

Holding

Where a ruling leaves a consent deposit condition undisturbed but specifies no time for compliance, the appellate court may prescribe the period and attach consequences for default

Reasoning

The High Court declined to set aside the consent order requiring deposit of the claimed amount but omitted to state when the deposit was to be made, leaving a lacuna the respondent exploited for over two years. The Court of Appeal held it had jurisdiction to prescribe the period itself and ordered a 30-day deposit with dismissal of the application and striking out of the defence if defaulted.

p. 3

Legal principles established

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  • The discretion to set aside a default judgment is unfettered and is to be exercised so as to do justice between the parties, considering reasons for the default, the conduct of the parties, the prima facie merits of the defence, compensability by costs, and that denying a hearing is a last resort
  • An appellate court will not lightly interfere with the exercise of discretion by a judge unless the judge misdirected himself in some matter and arrived at a wrong decision, or it is manifest that he was clearly wrong and a miscarriage of justice resulted
  • Where a regular judgment has been entered, the court will not usually set it aside unless satisfied that there are triable issues raising a prima facie defence which should go for trial

Court orders

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  1. 1.The respondent to deposit, within thirty (30) days of the date of the judgment, the sum claimed in the plaint in an interest-bearing account in the joint names of the parties' advocates in a reputable financial institution
  2. 2.In default of the deposit within the stated period, the respondent's application dated 25th October, 2013 to stand dismissed with costs
  3. 3.If a defence has been filed, the same to stand struck out in default of the deposit
  4. 4.Each party to bear its own costs of the appeal
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 161 of 2012
Jurisdiction invoked
Appellate jurisdiction over appeals from the High Court (Court of Appeal's appellate jurisdiction); no specific constitutional provision cited in the judgment

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, "Linumark Investments Limited v Diamond Shield International", Case Analysis (2014). Civil Appeal No. 17 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/176/eng@2014-12-10

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