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Court of AppealDismissedCivil Appeal No. 51 of 2019· [2020] KECA 306 (KLR)

Kenya Industrial Estates Limited v John Odwory Kulohoma [2020] KECA 306 (KLR)

Court of Appeal of Kenya
9 October 2020
1,798 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 ruled that skipping court hearings cannot be fixed later by blaming your lawyer, and upheld a default judgment against Kenya Industrial Estates.

What this practically means

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Executive summary

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This Court of Appeal judgment (Karanja, Okwengu and Asike-Makhandia, JJ.A) dismissed Kenya Industrial Estates Limited's appeal against the High Court's decision upholding a magistrate's refusal to set aside or review a default judgment. Kulohoma had sued KIE for irregularly repossessing shade No. 4 at the Busia Kenya Industrial Estate; the suit proceeded partly ex parte after KIE's advocates twice failed to attend despite service, and the trial magistrate entered judgment for Kulohoma, ordering a refund of Kshs. 456,474 and the return and transfer of the shade. KIE's motion to review or set aside the judgment, anchored on Orders 9 rule 1, 12 rule 7 and 22 rule 25 of the Civil Procedure Rules and Article 47 of the Constitution, was dismissed; the High Court (Kiarie, J) affirmed that dismissal, and KIE appealed. The Court of Appeal applied the Mbogo vs Shah threshold for interference with discretion, holding that the application was not one for review under Order 45 (which was never cited) but for setting aside under Order 12 rule 7; that KIE's advocate had been served with hearing notices but failed to attend; and that neither the magistrate nor the Judge misdirected himself. Blame attributed to counsel did not warrant relief. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Interference with the exercise of discretion by a lower court

Holding

An appellate court may only interfere where the lower court misdirected itself, arrived at a wrong decision, or was clearly wrong causing misjustice; here no misdirection was shown

Reasoning

The Court adopted the Mbogo vs Shah threshold, reconsidered the record, and found that KIE's advocate had been served with hearing notices but failed to attend court. Blaming the advocate did not entitle KIE to be relieved of the consequences. The trial magistrate therefore properly exercised his discretion and the High Court had no reason to interfere.

p. 2
02

Characterisation of the application under the Civil Procedure Rules

Holding

An application that fails to cite Order 45, though it uses the word 'review', is essentially one for setting aside or varying a judgment under Order 12 rule 7

Reasoning

The motion cited Orders 9 rule 1, 12 rule 7 and 22 rule 25 and Article 47 of the Constitution but not Order 45 which governs review. The Court therefore treated it as an application to set aside or vary a judgment, giving the trial court a discretion to set aside or vary upon such terms as may be just.

p. 2

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a lower court unless the judge misdirected himself and thereby arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong and injustice resulted
  • An application for setting aside or varying a judgment must be brought under Order 12 rule 7 of the Civil Procedure Rules; where Order 45 is not cited, the application is not one for review under Order 45
  • A first appellate judge considering an appeal from the exercise of discretion by a trial court is not exercising any discretion himself, but merely reviewing whether the discretion was exercised judicially

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 47
  • Civil Procedure RulesOrder 9 rule 1
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 22 rule 25
  • Civil Procedure RulesOrder 45 (and Order 45(1))

Cases cited (2)

  • Patriotic Guards Limited vs James Kipchirchir Sambu
    [2018] eKLR
  • Mbogo & Anor. vs Shah
    [1968] E.A. 93
On appeal from
High Court of Kenya at Busia
HCCA No. 13 of 2017
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act/Rules, confined to matters of law

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, "Kenya Industrial Estates Limited v John Odwory Kulohoma [2020] KECA 306 (KLR)", Case Analysis (2020). Civil Appeal No. 51 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/306/eng@2020-10-09

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