Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 131 of 2016· [2017] KECA 273 (KLR)

Keren Buaron v Sony Holdings Limited & 2 others [2017] KECA 273 (KLR)

Court of Appeal
29 September 2017
5,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that once a High Court Judge has ruled on a matter, a Deputy Registrar cannot reopen, vary, or undo those orders.

What this practically means

#

Executive summary

#
The appellant, Keren Buaron, sued Sony Holdings, Nakumatt Holdings and Knight Frank over her alleged forceful eviction from a shop at Westgate Shopping Mall. The respondents obtained an order for security for costs of KShs 2.4 million, which the appellant failed to deposit. Onyancha J granted her leave to appeal out of time on strict conditions, including deposit of the security within seven days, warning that failure would cause the leave to lapse; she did not comply, and the suit was dismissed by the Deputy Registrar on 13th March 2014 pursuant to Order 26 Rule 5(1). The appellant then moved the same Deputy Registrar to set aside the dismissal and extend time, and the Deputy Registrar dismissed the respondents' preliminary objection and directed the application to be heard. On the respondents' appeal, Sergon J upheld the preliminary objection, holding the application res judicata and outside the Deputy Registrar's jurisdiction. Allowing the respondents' position on this second appeal, the Court of Appeal (Visram, Karanja and Koome, JJ.A) held that once a Judge is seized of a matter, the Deputy Registrar may only comply with the Judge's orders and cannot vary, vacate or reopen them; the application of 26th March 2014 was res judicata under Section 7 of the Civil Procedure Act, the security and extension-of-time issues having been conclusively determined twice by Onyancha J without appeal. The Mbogo v Shah discretion jurisprudence was inapplicable because the Deputy Registrar acted without jurisdiction, and the overriding objective cannot rescue a litigant who wilfully disobeys court orders. The appeal was dismissed with costs to the respondents.

Key legal issues

#
01

Jurisdiction of the Deputy Registrar after the Judge has dealt with the matter

Holding

The Deputy Registrar had no jurisdiction to entertain the application dated 26th March 2014; once the Judge gave orders and the Deputy Registrar dismissed the suit for non-compliance, she was functus and could not reopen the matter.

Reasoning

While Deputy Registrars may exercise functions under Order 26 Rule 5 on behalf of the Judge, once a Judge is seized of the matter, issues the orders, and sends the file back for compliance, the Deputy Registrar retains only the power to comply. Having dismissed the suit pursuant to the Judge's orders, the Deputy Registrar had no residual jurisdiction to reinstate the suit or extend time for deposit of security.

p. 6
02

Whether the application of 26th March 2014 was res judicata

Holding

The application was res judicata; the issues of deposit of security and extension of time had been fully litigated and conclusively determined twice by Onyancha J.

Reasoning

Section 7 of the Civil Procedure Act bars a court from trying an issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided. Onyancha J had determined the security and extension-of-time issues conclusively, and the appellant had not appealed his orders. Reintroducing the same issues via the Deputy Registrar was an abuse of process and the preliminary objection was properly taken.

p. 7
03

Interference with the Deputy Registrar's discretion

Holding

The discretion jurisprudence (Mbogo v Shah line) was inapplicable because the Deputy Registrar was not exercising any discretion; she acted ultra vires and without jurisdiction.

Reasoning

The appellant's reliance on Mbogo v Shah and Shah v Osman Allu on appellate interference with discretion was misplaced. The Deputy Registrar was not exercising a lawful discretion in reinstating a suit dismissed pursuant to a Judge's orders; her action was ultra vires. The doctrine governing appellate interference with discretion is therefore irrelevant to the case.

p. 7
04

Applicability of the overriding objective

Holding

The overriding objective does not aid a litigant who wilfully or negligently disobeys court orders; the appellant was undeserving of its protection.

Reasoning

Article 159(2) and Sections 3A and 3B of the Appellate Jurisdiction Act must be invoked only in deserving cases. The appellant had a history of inordinate delay and non-compliance with conditional orders, repeatedly returning to court to relitigate settled matters, prejudicing the respondents. The principle does not debunk settled rules and cannot rescue a party who is the author of her own predicament.

p. 8

Legal principles established

#
  • Once a Judge of the High Court is seized of a matter and gives orders, a Deputy Registrar can only comply with those orders and cannot vary, vacate or reopen them.
  • Where an issue has been litigated and conclusively determined by a Judge, a party may not re-litigate it before a Deputy Registrar; the only recourse is an appeal to the Court of Appeal.
  • The overriding objective (Article 159(2) and Sections 3A and 3B) cannot be invoked to assist a party who has wilfully or negligently failed to comply with lawful court orders.
  • Where a suit has been dismissed pursuant to a Judge's orders, a Deputy Registrar purporting to reinstate it acts without jurisdiction, so the question of interfering with a trial court's discretion does not arise.

Court orders

#
  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 26 Rule 5(2)
  • Civil Procedure RulesOrder 26 Rule 5(1)
  • Civil Procedure RulesOrder 25 Rule 5
  • Civil Procedure ActOrder 48 (present Order 49)
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 62
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (11)

  • Samuel Kiiru Gitau vs John Kamau Gitau
    (1998) LLR 1769
  • G.R Mandavia vs Rattan Singh
    (1965) EA 118
  • Mbogo vs Shah
    (1968) EA 93
  • Shah and another vs Osman Allu
    (1974) 14 EACA 45
  • Agnes Kwamboka Ombuna vs Birisila Kerubo Ombuna
    Civil Appeal No. 106 of 2011 (Kisumu)
  • Kenya Breweries Limited vs Godfrey Odoyo
    Civil Appeal No. 127 of 2007
  • North West Water Ltd v Binnie & Partners
    [1990] 3 All E.R. 547
  • Karia & Another v the Attorney General and Others
    [2005] 1 EA 83
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Hunker Trading Company Limited vs Elf Oil Kenya Limited
    Civil Application No. Nai 6 of 2010
  • City Chemist (Nrb) & Another vs Oriental Commercial Bank Ltd
    Civil Application No. Nai. 302 of 2008 (UR. 199/2008)
On appeal from
High Court of Kenya at Nairobi
HCCA Nos. 165, 166 & 167 of 2015 (consolidated)
Jurisdiction invoked
Second appeal to the Court of Appeal under the Appellate Jurisdiction Act, confined to points of law (Section 62 of the Civil Procedure Act invoked by the respondents)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Keren Buaron v Sony Holdings Limited & 2 others [2017] KECA 273 (KLR)", Case Analysis (2017). Civil Appeal No. 131 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/273/eng@2017-09-29

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