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Court of AppealDismissedCivil Appeal No. 219 of 2007· [2015] KECA 518 (KLR)

Hezekiah Kamau & another v Kamau Mukuna [2015] KECA 518 (KLR)

Court of Appeal
17 July 2015
3,743 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed the appeal, ruling that a four-year unexplained delay in asking to set aside a judgment is fatal, and parties must appeal judgments directly.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a ruling of the High Court (A'ngawa J.) dated 9th February 2005, which refused to set aside the High Court's judgment of 21st June 2000 in a boundary dispute between three registered proprietors of adjacent parcels in North Kinangop. The judgment had been entered after the appellants' counsel, though present when the hearing was adjourned to 20th June 2000, failed to attend the resumed hearing, and the counterclaim was dismissed as unpursued. The appellants applied to set aside the judgment only in 2004, at the execution stage. The Court of Appeal, constituted by Koome, Mohammed and Otieno-Odek JJA in a single judgment of the court, upheld the trial judge's finding that the trial was inter partes, holding that a party who had notice of the resumed hearing through counsel present on the first day cannot later claim denial of a hearing without a convincing explanation for non-attendance. The court found the four-year delay inordinate and unexplained, noting that inordinate delay weighs heavily against an applicant and that the discretion to set aside judgments exists to avoid injustice from excusable mistake, not to assist deliberate delay. It further held that the appellants could not circumvent their failure to lodge a notice of appeal against the 2000 judgment by appealing the 2005 ruling, and that grounds based on facts arising after judgment (mutation forms, acreage, unlawfully signed documents) were impermissible as unpleaded matters. The finding that the boundary ran along the seasonal river, confirmed by the Land Registrar and Aluoch J., was affirmed. The appeal was dismissed with each party bearing its own costs, the respondent having not replied to the appeal submissions.

Key legal issues

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01

Whether the trial was ex parte or inter partes

Holding

The trial was inter partes; a party present through counsel when the hearing was adjourned cannot later claim denial of a hearing after failing to attend the resumed hearing.

Reasoning

Counsel for the appellants was present on 19th June 2000 when the case was adjourned to 20th June 2000, a date fixed in court in the presence of all counsel. The failure to attend the resumed hearing was unexplained. The court therefore upheld the trial judge's finding that the proceedings were inter partes and that the appellants had their opportunity to be heard but failed to take it.

p. 4
02

Whether the inordinate delay in applying to set aside the judgment justified the refusal

Holding

A four-year delay, with the application made only at the execution stage and with no explanation offered, was inordinate and justified refusal to set aside.

Reasoning

The application to set aside was filed on 5th April 2004, about four years after judgment. The judge invoked the principle of inordinate delay. On appeal, the appellants made no submissions explaining the delay. The court held the alleged mistake of previous counsel, raised four years after judgment, was an afterthought, and that inordinate delay weighed heavily against the appellants.

p. 6
03

Whether new factual grounds arising after judgment could sustain the appeal

Holding

Grounds premised on facts and issues that occurred after judgment and were neither pleaded nor before the trial court cannot sustain an appeal.

Reasoning

The parties had agreed on the issues for determination by the trial court, and the trial judge determined those issues. The new matters raised on appeal - mutation forms, alteration of acreage, unlawfully signed documents - arose after judgment. Citing Galaxy Paints and Odd Jobs, the court held a party is bound by pleadings and a court cannot enter judgment on unpleaded matters.

p. 6
04

Whether the finding that the boundary lay along the seasonal river was supported by evidence

Holding

The finding was supported by the Land Registrar's determination, further confirmed to Aluoch J., and there was no evidence to challenge it.

Reasoning

The record showed the Land Registrar confirmed the boundary was along the seasonal river, and a clarification sought by Aluoch J. from the district land surveyor confirmed the same. In the absence of evidence challenging the Land Registrar's findings, the Court of Appeal had no reason to fault the learned judge's finding on the boundary.

p. 6
05

Whether the appellants could appeal the ruling without having appealed the underlying judgment

Holding

The appellants could not circumvent their failure to appeal the judgment of 21st June 2000 by appealing the ruling of 9th February 2005.

Reasoning

No notice of appeal or appeal was lodged against the judgment of 21st June 2000. The court held a party cannot be allowed to argue an appeal where no notice of appeal has been lodged, and that seeking to attack the judgment indirectly through an appeal against the ruling refusing to set it aside was impermissible.

p. 6

Legal principles established

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  • A hearing is not ex parte where a party, through counsel present in court, had notice of the adjourned hearing date and fails to attend the resumed hearing without a convincing explanation.
  • An appellate court will interfere with a trial judge's discretionary decision only where the judge misdirected himself, acted on or failed to consider relevant matters, and as a result arrived at a wrong conclusion causing injustice.
  • A party cannot circumvent failure to lodge a notice of appeal or appeal against an earlier judgment by appealing a subsequent ruling.
  • A court cannot enter judgment on matters that have not been pleaded; parties are bound by their pleadings.
  • The discretion to set aside an ex parte judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.

Court orders

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  1. 1.The ruling dated 9th February 2005 is upheld
  2. 2.The appeal is dismissed
  3. 3.Each party is to bear his own costs

Authorities

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Cases cited (13)

  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • Mbogo & Another -v- Shah
    (1968) EA 93
  • Shah -v- Mbogo
    [1969] E.A. 116
  • Jamdas vs Sodina Gormanda
    [1952] 7 UR
  • Richard Nchapi Leiyagu -vs- IEBC & 2 Others
    Civil Appeal No. 18 of 2013
  • Belinda Murai & others -vs- Amoi Wainaina
    (1978) LLR 2782 (CALL)
  • Galaxy Paints Co. Ltd. -v- Falcon Guards Ltd.
    (2000) 2 EA 385
  • Odd Jobs -v- Mubia
    (1970) EA 476
  • Harith Ali El Busaidy -v- Kenya Commercial Bank Ltd
    HCCC No. 534 of 2003
  • Ashwichand Hirji Shah & 3 others -v- Lucy Wairimu Mwaura
    Civil Appeal No. 59 of 2006
  • Pindoria Construction Co. Limited -v- Iron and Sanitary Wares
    Civil Appeal No. 16 of 1976
  • Aggrey Odanga -v- Joshua Siambe
    (2008) eKLR
On appeal from
High Court of Kenya at Nairobi
HCCC No. 3303 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution/Appellate jurisdiction Act (appeal as of right from the High Court in a civil matter)

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, "Hezekiah Kamau & another v Kamau Mukuna [2015] KECA 518 (KLR)", Case Analysis (2015). Civil Appeal No. 219 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/518/eng@2015-07-17

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