Erwen Electronics Limited & 3 others v Radio Africa Limited & another [2018] KECA 589 (KLR)
The bottom line
#Kenya's Court of Appeal refused to rescue litigants who skipped a hearing, held them to their pleadings, and dismissed their appeal with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge exercised his discretion judiciously in declining to set aside his orders of 10th December 2009 striking out the appellants' joint defence
Key legal issues
#Whether the High Court judge exercised his discretion judiciously in refusing to set aside the ex parte striking out of the defence
The judge applied the correct principles (Shah v Mbogo; Maina v Muguna; Kanji Naran v Velji Kimji) and correctly found no triable issue; the appeal court found no basis to interfere with that discretion.
The Court of Appeal applied the classic principles on interference with discretionary decisions (Mbogo v Shah; United India Insurance v EA Underwriters). The trial judge had appraised himself of the pleadings, applied the DT Dobie principles on striking out, and found the joint defence a mere denial raising no triable issue. The appellants failed to exhibit proof of payment of the KRA taxes or the KBC debt, and the most prudent proof would have been a KRA certificate of compliance or a KBC acknowledgement receipt.
Whether the issue of non-assignment of debts from KRA and KBC to the 1st respondent could be raised on appeal
No - the issue was never pleaded or agitated before the trial court, and parties are bound by their pleadings; the appellate mandate is limited to matters determined by the trial court.
The joint defence nowhere pleaded a total denial of liability on account of lack of assignment. The 1st respondent correctly submitted the assignability issue was not raised before the trial judge. The court adopted the pleading-binding principle from Odd Jobs v Mubia and related cases and rejected the argument as new matter raised for the first time on appeal.
Legal principles established
#- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself, misapprehended the facts, took into account matters he should not have, failed to take into account matters he should have, or his decision is plainly wrong.
- An appellate court is limited to interrogating matters that were considered and determined by the trial court; issues raised for the first time on appeal are rejected.
- Parties are bound by their pleadings.
Court orders
#- 1.Appeal dismissed with costs to the 1st respondent both on appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 579 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act/Court of Appeal jurisdiction over the High Court ruling
Relief refused
#Setting aside the High Court orders striking out the joint defence and entering judgment
No basis for improper exercise of judicial discretion; issue of assignment of debts raised for first time on appeal; defence raised no triable issue
Costs
Appeal dismissed with costs to the 1st respondent both on appeal and the court below
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of consideration of which he should have taken account of; or fifthly, that his decision albeit a discretionary one is plainly wrong.
In our view, the most prudent way of proving discharge of any liability to KRA should have been simply by way of production of a certificate of compliance issued by KRA to that effect. None was exhibited.
We therefore agree with the 1 st respondent's submission that this issue was being raised for the first time on appeal and is accordingly rejected.
The upshot of the above is that we find no merit in this appeal. It is accordingly dismissed with costs to the 1 st respondent both on appeal and the court below.
Issues in the judgment
#Minor typographical errors in the judgment text ('joint efence', 'sriking out', inconsistent spelling of Mbogo v Shah as Shah versus Mbogo [1967] with citation 1968 EA 93 later)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erwen Electronics Limited & 3 others v Radio Africa Limited & another [2018] KECA 589 (KLR)", Case Analysis (2018). Civil Appeal No. 34 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/589/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.