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Court of AppealDismissedCivil Appeal No. 41 of 2014· [2015] KECA 674 (KLR)

Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR)

Court of Appeal of Kenya
29 May 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
4,638 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that blaming your lawyer for missed court dates won't save your case if you also sat idle.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Asike-Makhandia, Ouko and M'Inoti, JJ.A.) dismissed an appeal by the Tana and Athi Rivers Development Authority against a High Court ruling by Khaminwa, J. dated 8th June 2005, which had refused to set aside an ex parte summary judgment entered in favour of the respondents in Mombasa H.C.C. No. 172 of 2002, a claim for Kshs.4,969,440/- for accrued dues arising from allegedly unlawful termination of employment. The appellant's defence had been struck out for failure to supply further and better particulars despite a court order, with judgment entered for the entire claim. The appellant blamed counsel's clerk for failing to diarize hearing dates and argued the mistake of counsel should not be visited on the client, that the claim was unliquidated, and that the defence had triable issues. The Court applied the Mbogo v Shah thresholds for interfering with discretionary decisions, held that under the law of agency the clerk's defaults were those of counsel and the client, and that where a litigant's own carelessness and inactivity accompany a counsel's mistake, a refusal to exercise discretion in its favour cannot be impugned. The respondents having invoked only Order 13(1)(d) of the Civil Procedure Rules (abuse of process), the merit of the defence was irrelevant. The court found the appellant an indolent and abusive litigant throughout the proceedings and affirmed the High Court's decision, dismissing the appeal with costs to the respondents.

Key legal issues

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01

Interference with discretionary decisions of the High Court

Holding

The High Court properly exercised its discretion in refusing to set aside the ex parte judgment; no ground in Mbogo v Shah was established

Reasoning

The court applied the Mbogo v Shah thresholds for interfering with discretion and examined the parties' conduct. The record showed persistent indolence by the appellant: late filing of the defence, failure to supply particulars despite a court order, repeated non-attendance by counsel, delayed application to set aside, and inactivity in prosecuting the appeal. The trial judge could not be faulted for putting a stop to the delay tactics.

p. 3
02

Mistake of counsel and the conduct of the litigant

Holding

The mistake of counsel's clerk is imputed to counsel and the client; where the litigant is itself careless and inactive, the mistake is not excusable

Reasoning

The court held that under the law of agency the principal is bound by the acts of the agent, so the clerk's failure to diarize was counsel's mistake. Counsel also owes duties to the court and the other side. The appellant's own inactivity - failing to pursue its application to enlarge time, delaying the set-aside application and the appeal - meant the mistake was accompanied by the litigant's carelessness, justifying refusal of discretion.

p. 4
03

Striking out a defence for want of particulars under Order 13(1)(d)

Holding

Where an application to strike out is brought solely under Order 13(1)(d) (abuse of process), the merit of the defence is irrelevant; the defence was properly struck out for the appellant's failure to comply with an order to supply particulars

Reasoning

The respondents had invoked only sub rule (d), premised on the appellant's failure to furnish particulars rendering the defence vague and an abuse of process. Had they attacked the defence's merit they would have invoked sub rule (a). The court extended the lifeline of compliance with particulars, which the appellant squandered, so the striking out and refusal to set aside were proper.

p. 7
04

Whether summary judgment could lie on an unliquidated claim

Holding

The claim was for a specific and determinate amount, so it was not unliquidated and summary judgment was properly entered

Reasoning

The appellant argued the claim for accrued dues from unlawful termination was unliquidated. The court rejected this, finding the claim was for a specific and determinate sum (Kshs.4,969,440/-), and coupled with the appellant's conduct, the judge could not be faulted for entering summary judgment.

p. 7
05

Abuse of court process by dilatory conduct

Holding

The appellant's repeated use of court process to protract the suit while ignoring court orders constituted an abuse of process

Reasoning

The court adopted the Beinosi definition of abuse of process as endorsed in Muchanga Investments: proceedings permitted by the rules to facilitate the pursuit of truth used for extraneous purposes. The appellant's serial inactivity, non-compliance with orders and tactics to hold the respondents at ransom fit this definition and justified the trial court's refusal to set aside.

p. 7

Legal principles established

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  • The Court of Appeal will only interfere with the exercise of a trial court's judicial discretion on the established grounds in Mbogo v Shah
  • The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay justice
  • A litigant is bound by the acts and defaults of counsel's clerk under the law of agency, so the mistake of counsel's clerk is the mistake of counsel and of the client
  • While a mere negligent mistake of counsel may be excusable, where the litigant's own carelessness and inactivity accompany it, a refusal to exercise discretion in the litigant's favour cannot be impugned
  • The power to strike out a pleading must be exercised with great restraint, and the court will as far as possible allow amendment of a pleading if the amendment will cure the defect complained of
  • Parties bear responsibility to follow up their cases even when represented by counsel; blaming advocates for all transgressions is not enough

Court orders

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  1. 1.The appeal was dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 13(1)(d)

Cases cited (12)

  • Mbogo & Another v Shah
    [1968] EA 93
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Re Jones
    [1870], 6 Ch. App 497
  • Ketteman & others v. Hansel Properties Ltd
    [1988] 1 All ER 38
  • Ahmed v. Highway Carriers
    [1986] LLR 258 (CAK)
  • Myers v. Elman
    [1939] 4 All E.R 484
  • Kisii Farmers Co-operative Union Limited v Sanjay Natwarlal Chaunhan t/a Oriental Motors
    [2006] eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Mwangi v Kariuki
    [1999] LLR 2632 (CAK)
  • BEINOSI v WIYLEY
    1973 (SA 721 [SCA] at page 734F-G)
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C.C. No. 172 of 2002
Jurisdiction invoked
Intended appeal from the High Court to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 41 of 2014)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR)", Case Analysis (2015). Civil Appeal No. 41 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/674/eng@2015-05-29

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