Barclays Bank of Kenya Limited v Christopher Orina Kenyariri & another [2017] KECA 479 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Circumspection in interfering with judicial discretion
The Court declined to interfere with the High Court's discretionary production orders, being bound by Mbogo v Shah and related principles.
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.
Open justice and disclosure of documents essential to pleading defamation
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.
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.
Production of deleted electronic information and the 'unless' sanction
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal
- 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
#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.
- William Ndeti v Defendant Bank (Notice of Motion dated 19th December 2019)[2020] KEHC 1680 (KLR)17 Nov 2020applied
- Amina Tahir Sheikh Said & 4 others v SBM Bank (Kenya) Limited (formerly Chase Bank (In Receivership))[2020] KEHC 5262 (KLR)28 May 2020applied
- T S S INVESTMENTS LIMITED v KAAB INVESTMENTS LIMITED[2019] KEHC 381 (KLR)10 Dec 2019applied
Cite this brief
#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.