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Court of AppealAllowedCivil Appeal No. 6 of 2014· [2019] KECA 935 (KLR)

NIC Bank Limited v John Kisukha Mukakhula t/a Bungoma Teachers Training College [2019] KECA 935 (KLR)

Court of Appeal of Kenya
22 February 2019
2,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal restored a bank's dismissed lawsuit, ruling courts must hear parties and weigh prejudice before throwing out cases over procedural technicalities.

What this practically means

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Executive summary

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NIC Bank Limited sued John Kisukha Mukakhula T/A Bungoma Teachers Training College in the High Court to recover Kshs.3,628,168.83. After pleadings closed, the appellant unsuccessfully sought to strike out the defence, and on 12th March 2012 the High Court directed the parties to prepare the suit for hearing within 60 days and fix it for hearing within 14 days thereafter. The suit was not fixed as directed; the appellant instead applied in March 2013 to enlarge time, explaining by affidavit that the time-limit directions had not been read out in court and that its advocates learned of them only when attempting to fix the hearing, and that it had filed witness statements, bundles of documents and pre-trial documents. The respondent did not oppose. On 19th April 2013 Ogola, J. dismissed the application, finding no genuine reasons for non-compliance, with the effect that the underlying suit stood dismissed. The appellant appealed on five grounds, relying principally on CMC Holdings Ltd v Nzioki. The Court of Appeal, in a unanimous judgment, identified the main issue as the exercise of judicial discretion. Applying Mbogo v Shah and Mrao Ltd, it held the Judge failed to consider the uncontroverted affidavit evidence explaining the inadvertence, misapprehending the facts and failing to take relevant considerations into account. Invoking Article 159, the overriding objective and the proportionality principle, and noting the respondent had demonstrated no prejudice, the Court allowed the appeal, set aside the ruling and order of 19th April 2013, directed the appellant to set down the suit within 45 days, and made no order as to costs.

Key legal issues

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01

Exercise of judicial discretion by the trial court

Holding

The Judge failed to consider the uncontroverted depositions in the appellant's affidavits explaining the non-compliance, and thus misapprehended the facts and failed to take account of relevant considerations; the dismissal was unsustainable.

Reasoning

The Judge found the appellant gave no reasons for non-compliance although reasons were deponed to in the supporting affidavit, including that the time-limit directions were not read out in court. The respondent neither opposed the application nor filed a replying affidavit, so the evidence stood uncontroverted. Failure to consider crucial matters is a proper basis for appellate interference with discretion.

p. 2
02

Proportionality and the right to be heard before dismissal of a suit

Holding

Dismissal of the suit for technical breach without affording a hearing was disproportionate; the right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law.

Reasoning

Although the delay of about one year against a 60-day direction was inordinate, the respondent demonstrated no prejudice. The court invoked Article 159, the overriding objective and the proportionality principle, holding the appellant deserved its day in court rather than dismissal on a technicality.

p. 3
03

Whether the advocate's inaction amounted to an excusable mistake

Holding

Mere inaction by an advocate is not an excusable mistake, but here the appellant showed reasonable steps towards prosecution and the failure was by mistake, accident, inadvertence or error, unrebuted by the respondent.

Reasoning

The appellant deponed it had filed bundles of documents, witness statements, pre-trial questionnaire and list of witnesses, showing it was keen to prosecute. The respondent did not demonstrate prejudice. The failure to comply was therefore attributable to inadvertence rather than deliberate obstruction.

p. 3

Legal principles established

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  • The Court of Appeal may only interfere with a judge's exercise of judicial discretion on the established grounds of misdirection on law, misapprehension of facts, taking into account or failing to take into account relevant considerations, or where the decision is plainly wrong.
  • Before taking the drastic action of dismissing a suit on account of technical breaches, a court must pay due regard to Article 159 and the overriding objective and afford the party an opportunity to be heard.
  • A court must weigh the prejudice likely to be suffered by the innocent party against the prejudice to be suffered by the offending party before dismissing a suit.

Court orders

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  1. 1.Appeal allowed
  2. 2.The ruling and order dated 19th April 2013 set aside
  3. 3.Appellant directed to take steps to set down the suit for hearing within forty-five (45) days from the date of delivery of the ruling
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 17 rule 2

Cases cited (7)

  • CMC Holdings Ltd v Nzioki
    (2004) KLR 173
  • Mbogo v Shah & Another
    (1968) EA 93
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd
    (2016) eKLR
  • Coast Development Authority v Adam Kazungu Mzamba & 49 Others
    [2016] eKLR
  • Abdurrahman Abdi v Safi Petroleum Products Ltd. & Ors
    (2011) eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others
    (2013) eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 803 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal from a decision of the High Court (Supreme Court Act/Court of Appeal appellate jurisdiction over High Court decisions; the judgment does not cite a specific provision)

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, "NIC Bank Limited v John Kisukha Mukakhula t/a Bungoma Teachers Training College [2019] KECA 935 (KLR)", Case Analysis (2019). Civil Appeal No. 6 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/935/eng@2019-02-22

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