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Court of AppealDismissedCivil Appeal No. 216 of 2012· [2018] KECA 357 (KLR)

Andrew O Nyangweso v Alloys Barasa & 2 others [2018] KECA 357 (KLR)

Court of Appeal of Kenya
20 July 2017
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
1,012 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it won't overturn a judge's discretionary rulings unless you prove the judge acted wrongly or ignored key facts.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against a ruling of Kimaru, J. of the High Court at Busia dated 31st July 2012. The ruling had dismissed the appellant's application for stay of taxation of the respondents' bill of costs, but, invoking its inherent jurisdiction, had set aside the ex-parte assessment of that bill so that the appellant could participate in its taxation. The ex-parte assessment of Kshs 51,100/= had been made on 19th June 2012 in the appellant's absence despite service of a notice of taxation on 11th June 2012. Before the Court of Appeal, the appellant, appearing in person, contended that the learned judge had misapprehended his application, which sought a stay of the notice of taxation and execution pending determination of a separate appeal, and had instead ordered a fresh taxation that did not serve the purpose of the application. The respondents opposed. The Court applied the long-standing principle from Edward Sargent v Chhotabhai Jhaverbhat Patel and Mbogo & Another v Shah that an appellate court will not interfere with an order made in the exercise of judicial discretion unless it is shown that the discretion was not exercised judicially. The Court held that the learned judge appreciated the application before him, correctly found that the appellant had not demonstrated substantial loss nor provided security for costs, and had in fact favoured the appellant by setting aside the ex-parte assessment. Finding no basis for interference and the appeal devoid of merit, the Court dismissed the appeal with costs to the respondents.

Key legal issues

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Whether the High Court's exercise of discretion in dismissing the stay application and setting aside the ex-parte assessment of costs warranted appellate interference

Holding

The appeal fails because the judge properly exercised his discretion: the appellant did not demonstrate substantial loss or provide security, and the ruling in fact afforded him a fresh opportunity to participate in the taxation.

Reasoning

The Court applied the settled principle that an appellate court does not interfere with discretionary orders unless the discretion was exercised unjudicially. The judge appreciated the nature of the application, found no demonstration of substantial loss, noted the absence of security for costs, and nonetheless granted the appellant a fresh taxation. There was no misdirection or failure to consider relevant matters, so the appeal lacked merit.

p. 3

Legal principles established

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  • An appellate court will not interfere with an order made in the exercise of judicial discretion by a lower court unless it is shown that the discretion was not exercised judicially
  • An appellate court may interfere with the exercise of discretion only where the judge misdirected himself, acted on wrong matters, failed to consider relevant matters, or reached a wrong conclusion

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Cases cited (2)

  • Edward Sargent v Chhotabhai Jhaverbhat Patel
    [1949] 16 EACA 63
  • Mbogo & Another v Shah
    [1968] E.A. 93
On appeal from
High Court of Kenya at Busia
HCCC No. 39 of 2010
Jurisdiction invoked
First appeal/appellate jurisdiction of the Court of Appeal over a ruling of the High Court (no specific constitutional or statutory provision cited in the judgment)

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, "Andrew O Nyangweso v Alloys Barasa & 2 others [2018] KECA 357 (KLR)", Case Analysis (2017). Civil Appeal No. 216 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/357/eng@2018-07-20

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