Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 214 of 2014· [2019] KECA 888 (KLR)

Jubilee Insurance Company Limited v Kishor Ramji Hirani & 2 others

Court of Appeal of Kenya
22 February 2019
3,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal threw out a High Court judgment issued three years late, ordering the entire loan dispute to be retried from scratch.

What this practically means

#

Executive summary

#
The respondents, registered proprietors of LR No. 7785/533, obtained a loan facility of Ksh. 6 million from Jubilee Insurance Company Limited in 1997, of which Ksh. 4 million was advanced through Diamond Trust Bank. They executed charge documents, expecting the balance of Ksh. 2 million, which the appellant applied to offset their liability to Equatorial Commercial Bank (Ksh. 1,197,496.45). The respondents sued for discharge of charge and damages; the High Court (Khaminwa J.) on 14th December 2011 ordered discharge of the charge, release of title documents and a perpetual injunction, after a judgment delayed over 34 months and delivered without notice to the parties. The Court of Appeal, in a unanimous first appeal, held that although delay alone does not automatically vitiate a judgment, the delay here was unreasonable and affected the judge's appreciation of the case. More decisively, re-evaluation of the evidence showed the trial judge made a fundamental error in failing to appreciate that the appellant held a charge over the property as security when the Ksh. 4 million and Ksh. 1,197,496.45 had not been repaid, and erred in not determining the triable issue of the Ksh. 5.8 million deposit and interest. The Court set aside the High Court judgment in its entirety, remitted HCCC No. 761 of 1999 for retrial, directed the deposit to continue being held by the appellant on the same terms pending further orders, and ordered each party to bear its own costs in the appeal.

Key legal issues

#
01

Effect of inordinate delay in delivery of judgment

Holding

The delay of over 34 months and delivery of judgment without notice to the parties was unreasonable and affected the learned judge's appreciation of the matter, warranting setting aside of the judgment.

Reasoning

Both parties conceded the judgment was delayed about three years and delivered without notice. The Court surveyed Indian, Kenyan and UK authorities and concluded that while excessive delay shakes public confidence, the decisive factor was that the delay impaired the judge's evaluation of the evidence, compromising the integrity of the judgment.

p. 4
02

Failure to evaluate the evidence and the charge security

Holding

The trial judge made a fundamental error in failing to appreciate the appellant had a charge over the suit property as security for the loan and sums disbursed, and in discharging the charge when the sums had not been fully repaid.

Reasoning

On re-evaluation, it was uncontroverted that Ksh. 4 million was advanced and attracted interest, and that the appellant paid Ksh. 1,197,496.45 to Equatorial Commercial Bank for the respondents' benefit. Ordering discharge of the charge left the appellant without security while the monies remained unpaid, an error requiring retrial.

p. 4
03

Failure to determine the Ksh. 5.8 million deposit

Holding

The rate of interest on, and entitlement to, the sum of Ksh. 5.8 million held as deposit is a triable issue, and the learned judge erred in not making a determination on it.

Reasoning

Both parties conceded the trial court did not determine the fate of the deposit, its interest rate, or who is entitled to it. As between the parties this was a triable issue which the trial court ought to have determined; it was left to the retrial, with the deposit preserved pending further orders.

p. 4

Legal principles established

#
  • An unreasonable delay between hearing of arguments and delivery of judgment is highly undesirable unless explained by exceptional or extraordinary circumstances, as it shakes litigants' confidence in the results of litigation.
  • On a first appeal, the Court of Appeal has a duty to re-evaluate and re-examine the evidence adduced and make its own independent determination.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated 14th December 2011 set aside in entirety
  3. 3.HCCC No. 761 of 1999 remitted for retrial by any judge of the High Court
  4. 4.The sum of Ksh. 5.8 million held as deposit to continue being held by the appellant on the same terms and conditions upon which it was deposited until further orders by the High Court at rehearing of the suit
  5. 5.Each party to bear its/his/her costs in the appeal
On appeal from
High Court of Kenya at Nairobi
NRB. HCC No. 761 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jubilee Insurance Company Limited v Kishor Ramji Hirani & 2 others", Case Analysis (2019). Civil Appeal No. 214 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/888/eng@2019-02-22

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