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Court of AppealDismissedCivil Appeal No. 302 of 2014· [2017] KECA 479 (KLR)

Barclays Bank of Kenya Limited v Christopher Orina Kenyariri & another [2017] KECA 479 (KLR)

Court of Appeal of Kenya
9 June 2017
4,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld orders forcing a bank and credit bureau to disclose the exact words behind a loan-defaulter listing, confirming that hiding information can get your defence struck out.

What this practically means

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Executive summary

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Barclays Bank of Kenya appealed against a ruling of the High Court (Mabeya, J.) that ordered BBK and Credit Reference Bureau Africa Limited to produce, under oath, a letter dated 21st February 2011 submitting the plaintiff's information to the credit bureau, a letter dated 18th March 2011 or a screen shot of encrypted electronic information, within 14 days, failing which their defences in the plaintiff's defamation suit would stand struck out. The plaintiff, an advocate, had sued for Kshs. 20 million and damages after being listed as a loan defaulter, and needed the exact words complained of to plead his defamation claim. BBK argued that the judge misapplied the law on particulars, relied on bad law including the overturned Canadian decision in Jay v DHL, and ignored the Banking (Credit Reference Bureau) Regulations, 2008 permitting permanent deletion of corrected information. CRB contended the information had been deleted and was in encrypted, unreadable form. The Court of Appeal, in a single judgment of Waki, Nambuye and Kiage, JJ.A, dismissed the appeal. It held that the order was a discretionary one with which it would not interfere absent misdirection or clear error; that litigation must be conducted openly on a 'cards face up on the table' basis under Article 159(2) and sections 1A and 1B of the Civil Procedure Act; that the judge was entitled to order early disclosure essential for pleading defamation; and that the 'unless' striking-out sanction was a justified response to the defendants' evasive conduct. The appeal was dismissed with costs.

Key legal issues

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01

Circumspection in interfering with judicial discretion

Holding

The Court declined to interfere with the High Court's discretionary production orders, being bound by Mbogo v Shah and related principles.

Reasoning

The Court held that what was before it was an invitation to interfere with a judge's exercise of discretion, which must be approached with circumspection and hesitation. Relying on Mbogo v Shah and United India Insurance, the Court reiterated that interference is warranted only where the judge misdirected himself, acted on improper matters, failed to consider relevant matters, or was clearly wrong. Finding the ruling well thought out, the Court saw no basis for interference.

p. 4
02

Open justice and disclosure of documents essential to pleading defamation

Holding

The learned Judge was entitled to order production of the letters and electronic information at the heart of the defamation claim, since a defamation statement of claim must plead the exact words complained of.

Reasoning

The Court endorsed the judge's adoption of the 'cards face up on the table' principle from Davies v Eli Lilly and the equalizing role of discovery from Board v Thomas Hedley. Because the exact words of the alleged libel had to be pleaded verbatim and were in the possession of the defendants, early disclosure was necessary for the just determination of the dispute and to avoid litigation by ambush.

p. 6
03

Production of deleted electronic information and the 'unless' sanction

Holding

The judge did not reason perversely in directing CRB to endeavour to retrieve the information from residual data, and was justified in attaching an 'unless' striking-out sanction given the defendants' evasive conduct.

Reasoning

The Court accepted the judge's observation that it is common practice for organizations to back up electronic data, holding that this expressed a truism of the Information Age rather than perverse speculation. Confronted with defendants who had themselves disclosed the existence of the letters yet declined to produce them, the judge faced a Hobson's choice and properly granted the orders with a time frame and an 'unless' tag, consistent with the D.T. Dobie principles and the overriding objective.

p. 7

Legal principles established

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  • An appellate court will not interfere with the exercise of a trial judge's discretion unless satisfied the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters and in doing so arrived at a wrong decision, or was clearly wrong.
  • Litigation must be conducted openly on a 'cards face up on the table' basis, and the overriding objective and Article 159(2) of the Constitution justify orders for early disclosure to enable a claimant to plead a defamation claim with particularity.
  • A sanction of striking out attached to an 'unless' production order is a draconian remedy to be resorted to sparingly, but it is properly invoked in the clearest of cases where a party withholds information essential to the fair pleading and trial of a claim.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay the costs of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 11 Rule 3(2)(b)
  • Civil Procedure RulesOrder II Rule 3(iii)
  • Banking (Credit Reference Bureau) Regulations2008

Cases cited (7)

  • MBOGO vs. SHAH
    1968 EA 93
  • UNITED INDIA INSURANCE CO. LTD vs. EAST AFRICAN UNDERWRITERS (KENYA) LTD
    [1985] EA 989
  • JAY vs. DHL
    [2008] PESCTD 13; 52 C.P.C. (6th) 166
  • JAY vs. DHL
    [2009] PECA 02
  • BOARD vs. THOMAS HEDLY & CO.
    [1951] 2 ALL ER 431
  • DAVIES vs. ELI LILLY & CO.
    [1987] 1 WLR 1136
  • D.T. DOBIE & COMPANY (K) LTD vs. MUCHINA
    1982 KLR 1
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 276 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Constitution over appeals from the High Court (the judgment does not cite a specific provision; it exercises the Court of Appeal's ordinary appellate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Barclays Bank of Kenya Limited v Christopher Orina Kenyariri & another [2017] KECA 479 (KLR)", Case Analysis (2017). Civil Appeal No. 302 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/479/eng@2017-06-09

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