National Industrial Credit Bank Limited v Barclays Bank of Kenya Limited & 1 other
The bottom line
#A Kenyan bank lost its claim forever because its lawyers never asked for it to be reinstated, but won the right to defend a counterclaim at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's conduct amounted to an excusable mistake justifying setting aside an ex parte judgment
No error or mistake was established where the appellant did not specify the nature of the alleged error and the material did not disclose any error; walking out of court could not be characterised as a mistake.
The court agreed with the trial judge that the former counsel attended court knowing the case was fixed for hearing and then walked out; the appellant never specified what the alleged error was or expressed regret, and did not distance itself from the conduct. The judge was therefore entitled to find the conduct deliberately motivated rather than inadvertent, and the appellate court would not disturb that finding.
Whether the judge misdirected herself in finding the appellant had not responded to the allegation that the motor vehicle was sold
The judge erred: the appellant's reply to the further amended defence and counterclaim expressly addressed the legality of the sale, so the reason for refusing to set aside the judgment had no basis.
Reading the pleadings, the appellant's reply at paragraphs 18 and 19 asserted that the restraining orders had expired before the sale and denied its illegality. Having once responded, the appellant was not obliged to respond again in a further reply. The judge's erroneous conclusion amounted to a misdirection warranting appellate interference with her discretionary decision.
Pleading as a constraint on relief
Parties are bound by their pleadings; because no prayer for reinstatement was made, the appellant's claim could not be reinstated and stood dismissed.
Relying on Nairobi City Council v Thabiti Enterprises and Bullen, Leake & Jacob, the court held that pleadings define and delimit the matters in controversy. Since the chamber summons omitted a prayer for reinstatement of the claim, the court lacked the capacity to order it, and the claim against the 2nd respondent stood dismissed.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected herself, or the decision is clearly wrong and results in misjustice.
- A party is bound by its pleadings, and the court cannot impute into a party's case matters that have not been pleaded.
- Relief not prayed for cannot be granted; a court cannot order reinstatement of a claim where no prayer for reinstatement is made.
Court orders
#- 1.The ruling and order of the High Court dated 27th June 2005 is set aside in part, to the extent that the appellant's claim stands dismissed
- 2.The appeal is allowed in respect of the counterclaim, which shall proceed to full hearing before any judge of the High Court excluding Kasango, J
- 3.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- Civil Case No. 293 of 2001
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (the judgment does not cite a specific constitutional or statutory provision for appellate jurisdiction; the application below was under Order IXB rule 8 of the retired Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ayodi v Jacquiline Achieng Mugo Executive Director FKE & 4 others (Employment and Labour Relations Petition E149 of 2024) [2025] KEELRC 2754 (KLR)[2025] KEELRC 2754 (KLR)9 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "National Industrial Credit Bank Limited v Barclays Bank of Kenya Limited & 1 other", Case Analysis (2018). Civil Appeal No. 190 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/709/eng@2018-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.