Kenya Commercial Bank Limited & another v Municipal Council of Mombasa & 2 others [2019] KECA 64 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a Sh35 million land case, ruling that serving two conflicting court notices denied the owners a fair chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court judge exercised her discretion judiciously in declining to set aside the dismissal of the suit for want of prosecution
The judge did not, because she failed to interrogate the appellants' explanation that two NTSCs with different dates had been served and that their new advocates only knew of the 16th October 2017 date.
The Court found the judge did not consider the appellants' reason for non-attendance on 11th October 2017. Two NTSCs bearing different dates were served on the former advocates; the new advocates were aware only of the 16th October date. Such defective service was improper in law, and on Kanji Naran the court has no discretion where there has been no proper service. Had the judge considered all relevant factors, she would have reached a different conclusion.
Whether a mistake by a party's advocates should result in the suit being dismissed and the door of justice closed
No; where the interests of justice so dictate, the court should rectify a lawyer's mistake rather than close the door of justice.
Relying on Madan, JA's dictum in Belinda Murai & Others v Amos Wainaina, the Court held that although a mistake by an experienced lawyer may not be condoned, the court ought to do whatever is necessary to rectify it where the interests of justice so dictate. Here the circumstances—a suit filed against a deceased person and the sale of a valuable property without notice to his family—required proper consideration on the merits.
Legal principles established
#- The Court of Appeal will not interfere with the exercise of discretion by a lower court unless the judge misdirected himself or the decision is clearly wrong resulting in misjustice.
- Where there has been no proper service of court process, the court has no discretion to entertain consequential orders.
- Dismissal for want of prosecution requires intentional and contumelious default or inordinate delay giving rise to a substantive risk of an unfair trial or serious prejudice.
- A litigant should not be shut out of justice because of a mistake by his advocate; the court should rectify the mistake where the interests of justice so dictate.
- Service of two notices to show cause bearing different dates in respect of the same matter is not proper service in law.
Court orders
#- 1.Appeal allowed
- 2.Ruling delivered on 20th June 2018 set aside
- 3.ELC Cause No. 289 of 2007 reinstated to hearing
- 4.The suit to be heard on a priority basis
- 5.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa High Court Civil Case No. 289 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of the High Court (appeal as of right from an interlocutory decision of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited & another v Municipal Council of Mombasa & 2 others [2019] KECA 64 (KLR)", Case Analysis (2019). Civil Appeal No. 156 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/64/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.