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Court of AppealDismissedCivil Appeal No. 63 of 2011· [2020] KECA 509 (KLR)

Muroki Estates Limited v Mengo Farm Limited [2020] KECA 509 (KLR)

Court of Appeal of Kenya
24 July 2020
KMK. M'InotiAMA.K. MurgorSKS. ole Kantai
2,118 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to undo a huge ex parte land judgment, warning litigants who hide facts, lie, or file parallel cases will get no second chance.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (M'Inoti, Murgor and ole Kantai, JJ.A.) dismissing the appellant's challenge to a High Court ruling of Sitati, J. delivered on 17 February 2011 in H.C.C.C. No. 534 of 2005, in which the judge refused to set aside an ex parte judgment entered against the appellant after formal proof before Kubo, J., who had on 5 October 2005 given the respondent judgment as prayed, including damages of Kshs.7,840,000, over a 70-acre parcel of land in Trans Nzoia (L.R. No. 11437). The appellant sought to set aside that judgment more than a year later, alleging it had been tricked into signing papers and asserting a 1994 purchase of the suit property. Sitati, J. dismissed the application, finding the appellant did not come to court with clean hands, made no material disclosure, engaged in falsehoods and forum shopping (including parallel Kitale proceedings found by Ibrahim, J. to be an abuse of process), deliberately failed to enter appearance, was met by res judicata in light of prior judgments, and had no viable defence; the alleged sale also lacked Land Control Board consent. The Court of Appeal, applying the classic Mbogo v Shah standard on non-interference with judicial discretion, held that the judge exercised her discretion judicially and correctly and did not misdirect herself. The appeal was accordingly dismissed with costs to the respondent.

Key legal issues

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01

Interference with judicial discretion on setting aside ex parte judgments

Holding

The Court of Appeal will not disturb the exercise of discretion by a judge unless it is satisfied the discretion was exercised wrongly or that injustice has resulted; here the discretion was judicially and correctly exercised

Reasoning

The Court adopted the classic statements of De Lestang, VP and Newbold, P in Mbogo v Shah. It reviewed Sitati J's detailed evaluation: service of summons was admitted and later dishonestly denied; the appellant suppressed the Kitale proceedings; it engaged in forum shopping; there was no excusable mistake and no viable defence. On the whole record the judge neither misdirected herself nor arrived at a wrong decision, so the appeal failed.

p. 3
02

Conduct of a party seeking discretionary relief - clean hands and full disclosure

Holding

A litigant who suppresses material facts, engages in forum shopping and falsehoods, and deliberately fails to enter appearance does not deserve to have an ex parte judgment set aside

Reasoning

Sitati J found, and this Court agreed, that the appellant did not go to court with clean hands; it filed parallel proceedings in Kitale (H.C.C.C. No. 98 of 2005) which Ibrahim J found to be a blatant abuse of court process; it suppressed those facts; its deponent admitted service then denied it. These findings independently justified refusal of the Chamber Summons, in addition to the res judicata and lack-of-defence findings.

p. 2

Legal principles established

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  • An appellate court will not interfere with the exercise of judicial discretion by an inferior court unless it is shown the discretion was clearly wrong, that the judge misdirected himself, or acted on wrong principles, resulting in a wrong decision or injustice
  • A party seeking to set aside an ex parte judgment must demonstrate an excusable mistake and a viable defence, and must come to court with clean hands, making full and honest disclosure

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 IXB Rule 8 (now renumbered Order 10 rule 11)

Cases cited (1)

  • Mbogo v Shah
    [1968] E.A. 93
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 534 of 2005
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate powers (not expressly stated in the judgment)

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, "Muroki Estates Limited v Mengo Farm Limited [2020] KECA 509 (KLR)", Case Analysis (2020). Civil Appeal No. 63 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/509/eng@2020-07-24

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