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Court of AppealDismissedCivil Appeal No. 75 of 2010· [2016] KECA 845 (KLR)

Charles Masese & Another v Julius Maina Mwangi

Court of Appeal of Kenya
27 April 2016
3,514 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a judgment debtor's acknowledgement or part payment can revive an old debt, and 14 years of silence cost the appellants everything.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal (Nambuye, Okwengu and Kiage, JJ.A) against a ruling of Maraga, J delivered on 1st April 2009 in H.C.C.C. No. 635 of 1993, dismissing the appellants' application to declare a 1995 ex parte judgment incapable of execution and to set it aside. The underlying suit was a road-traffic claim in which the 2nd appellant was found solely liable and the 1st appellant vicariously liable, with damages of Kshs. 284,600/= awarded in July 1995. Execution proceedings were resisted on the ground that they were statute-barred under section 4(4) of the Limitation of Actions Act; the Deputy Registrar rejected that objection, holding that part payments on 10.2.2001 and 10.3.2001 restarted time under section 23(3). The Court of Appeal dismissed the appeal in its entirety. It held that a stale decree is revivable by acknowledgement or part payment, found that the advocate Imali Gembe had authority to act for the 1st appellant and made part payment by cheques later replaced with cash, thereby reviving the decree. It distinguished the authorities relied on by the appellants, held the parties bound by their pleadings on vicarious liability, and refused to entertain complaints never raised below, finding them afterthoughts or waived. The appeal was dismissed with costs to the respondent both on appeal and in the court below.

Key legal issues

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01

Setting aside of ex parte judgment

Holding

The ex parte judgment could not be set aside; the appellants delayed 14 years, raised the complaint only as a shield against execution, and were bound by their pleadings on vicarious liability.

Reasoning

The court applied the Shah v Mbogo principles: discretion to set aside ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructed or delayed justice. The appellants neither attended the hearing nor moved timeously, and their belated complaints were an afterthought.

p. 9
02

Revival of a stale decree by acknowledgement or part payment

Holding

Section 23(3) of the Limitation of Actions Act extends the limitation period where the debtor acknowledges the claim or makes part payment; the actions of Imali Gembe advocate, issuing cheques later replaced with cash, revived the decree.

Reasoning

The court construed section 23(3) as subject to the general limitation provision. The 1st appellant had the opportunity to demonstrate that the firm of Obiero & Co. Advocates lacked instructions but never did; he retained the benefit of their services (release from civil jail), and the adverse inference was drawn from his failure to source an affidavit.

p. 13
03

Validity of the decree for execution

Holding

The complaint of an invalid decree was an afterthought never raised before the courts below; in any event the 1st appellant waived the right to complain by participating in execution proceedings since 2.12.1998.

Reasoning

The issue of invalidity on account of non-extraction was never raised in the application of 23.3.2009 or in representations before the learned Judge, so the appellate court could not entertain it. Alternatively, participation in execution proceedings, including representation on 8.11.2007 when adjournment was by consent, amounted to waiver.

p. 14

Legal principles established

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  • A stale or expired decree is incapable of execution unless the judgment debtor acknowledges it or makes part payment towards its liquidation, in which case time runs afresh under section 23(3) of the Limitation of Actions Act.
  • An appellate court will not interfere with the exercise of discretion by a judge acting within his jurisdiction.
  • An appellate court is confined to issues raised by the parties and ruled upon by the court below; new issues cannot be introduced on appeal.
  • A party who fails to seek particulars of vicarious liability is deemed satisfied with the pleading and bound by it.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent both on appeal and in the court below

Authorities

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Legislation

  • Limitation of Actions Actsection 4(4)
  • Limitation of Actions Actsection 23(3)
  • Limitation of Actions Actsection 23
  • Limitation of Actions Actsection 3 of Part II
  • Rules of the Court (Court of Appeal Rules)rule 29(1)

Cases cited (7)

  • Nimrod N. Nchogu & Another v Ms. Chodha & Sons Ltd
    [1995] eKLR

    Refusal to let a defendant press a vicarious-liability defence may cause a failure of justice

  • Bouchard International Services Ltd v M'Mwereria
    [1987] KLR 193

    Proof of who drove the vehicle and relationship with owner; non-interference with discretion

  • Abdi S. Rahaman Shire v Thabiti Finance Co. Limited
    NRBI Court of Appeal No. 76 of 2000 (unreported)

    A mere inquiry about debt details is not an acknowledgement of a specific sum owing

  • Kantaria Investments Limited v The Attorney General
    [2011] eKLR

    A preliminary objection on a point of law cannot lie where facts are in dispute

  • Afro Freight Foundation Ltd v African Liner Agencies
    [2029] eKLR

    Section 23(3) revives a cause of action upon proven acknowledgement

  • Shah v Mbogo
    [1968] (Court of Appeal for Eastern Africa)

    Locus classicus on principles for setting aside ex parte judgment

  • Nzoia Sugar Company Limited v Capital Insurance Brokers Ltd
    [2014] eKLR

    Parties are bound by their pleadings

On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 635 of 1993
Jurisdiction invoked
First appeal under rule 29(1) of the Court of Appeal Rules (power to reappraise the evidence and draw inference of fact)

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, "Charles Masese & Another v Julius Maina Mwangi", Case Analysis (2016). Civil Appeal No. 75 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/845/eng@2016-04-27

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