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Court of AppealDismissedCivil Appeal No. 232 of 2010· [2018] KECA 826 (KLR)

Hillary Rotich v Wilson Kipkore [2018] KECA 826 (KLR)

Court of Appeal of Kenya
16 February 2018
2,693 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a litigant's attempt to overturn a default judgment because he failed to explain his delay or comply with the judge's conditions.

What this practically means

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Executive summary

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The appellant, Hillary Rotich, was sued by the respondent, Dr. Wilson Kipkore, for US$134,102 (Kshs 9,990,867.20) for breach of a 2004 agreement to import a vehicle from Dubai. The appellant, though served and having entered appearance, failed to file a defence, and default judgment was entered on 27th April 2010. His application to set aside the judgment and for leave to file a defence out of time was granted conditionally by Koome, J. on 2nd July 2010: he was to deposit the disputed sum in an interest-earning account in the joint names of the parties' advocates within 30 days, failing which the application would stand dismissed. He did not comply and the application stood dismissed. The appellant appealed on five grounds, principally challenging the exercise of discretion: denial of an adjournment, entitlement to unconditional leave to defend on the strength of a triable issue, mistake of counsel as a ground for setting aside, the onerous deposit condition, and the judge's reliance on the former Order XLI rule 4(2) on stay of execution pending appeal. The Court of Appeal dismissed the appeal. It held that the refusal of the adjournment was judicious; that the explanation for the failure to file a defence was bare, casual and based on conjecture because the advocates actually responsible for the omission did not swear an affidavit; that the judge had discretion under Order IXA rule 10 to impose just conditions; and that although the invocation of Order XLI rule 4(2) was erroneous, the error was immaterial given the absence of any material upon which discretion could be exercised in the appellant's favour. The default judgment was a regular one, and the appellant had only himself to blame for non-compliance with the condition.

Key legal issues

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01

Refusal of adjournment and the right to fair hearing

Holding

The judge did not err in denying the adjournment; the discretion was exercised judiciously and the replying affidavit was served three days before the hearing

Reasoning

The discretion to grant adjournments is case-specific and must be exercised judiciously, not whimsically. The application had been certified urgent with ex parte stay orders in force, and the respondent's affidavit was served three days before the inter partes hearing. Even if the appellate court would have granted the adjournment, that alone does not justify interference with the judge's discretion.

p. 3
02

Explanation for failure to file defence

Holding

The appellant's explanation based on mistake of counsel was bare, casual and based on conjecture, warranting no exercise of discretion in his favour

Reasoning

The affidavit was sworn by the appellant on the advice of Owino & Owino, who were not the advocates who omitted to file the defence. The advocates responsible, Ombeta & Associates, did not swear an affidavit explaining the inadvertence or error, and the source of information was undisclosed. What was placed before the court was pure supposition or conjecture, which cannot form the basis for exercising discretion in a party's favour.

p. 3
03

Conditional leave to defend and the error in invoking Order XLI rule 4(2)

Holding

The judge had discretion to impose just conditions under Order IXA rule 10; although she erroneously invoked Order XLI rule 4(2) on stay of execution pending appeal, the error was immaterial given the appellant's failure to lay any basis for discretion in his favour

Reasoning

The judge bent over backwards to give the appellant a chance to defend the suit by imposing a deposit condition within 30 days, which he did not comply with. The invocation of Order XLI rule 4(2) was erroneous since no application for stay pending appeal was before her, but the error had no bearing on the outcome because no material had been placed before the court upon which discretion could be exercised for the appellant.

p. 3

Legal principles established

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  • The Court of Appeal will not interfere with a trial court's exercise of discretion unless it is shown the discretion was exercised wrongly, per the five grounds set out by Madan, JA
  • Extension of time or setting aside is not a right of a litigant; the applicant must lay a basis to justify the order sought
  • Casual granting of adjournments on the mere asking is contrary to the public policy of expeditious disposal of cases

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder IXA rule 10 (former)
  • Civil Procedure RulesOrder XLI rule 4(2) (former)

Cases cited (14)

  • James Wanyoike & 2 Others v. CMC Motors Group Ltd & 4 Others
    [2015] eKLR
  • CMC Holdings Ltd v. James Mumo Nzioki
    [2004] eKLR
  • CFC Stanbic Ltd v. John Maina Githaiga & Another
    [2013] eKLR
  • Jimnah Irungu N. Mwangi v. Eunice Nduta Kamau
    [2016] eKLR
  • Gideon Muriuki & Another v. Cleophas Wekesa & Another
    [2015] eKLR
  • Tana & Athi Rivers Development Authority v. Jeremiah Kimigho Mwakio & 2 Others
    [2015] eKLR
  • Habo Agencies Ltd v. Wilfred Odhoambo Musingo
    [2015] eKLR
  • United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd
    [1985] EA 898
  • Mbogo & Another v. Shah
    [1968] EA 93
  • Matiba v. Moi & 2 Others
    [2008] 1 KLR 670
  • Jaribu Holdings v. Kenya Commercial Bank Ltd
    CA. No. 314 of 2007
  • Mohammed Hassan Musa & Another v. Peter M Mailanyi & Another
    CA No. 243 of 1998
  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 Others
    [2014] eKLR
  • Patel v. E. A. Cargo Handling Services Ltd
    [1974] EA 75
On appeal from
High Court of Kenya
HCCC No. 108 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Constitution of Kenya, 2010); appeal against exercise of discretion in a civil matter under the Civil Procedure Rules

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, "Hillary Rotich v Wilson Kipkore [2018] KECA 826 (KLR)", Case Analysis (2018). Civil Appeal No. 232 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/826/eng@2018-02-16

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