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Court of AppealPartially AllowedCivil Appeal E016 of 2020· [2022] KECA 562 (KLR)

Mombasa Cement Limited v Kitsao & 34 others

Court of Appeal
24 June 2022
SKSG KairuPNP NyamweyaJLJW Lessit
2,314 words in judgment
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The bottom line

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Kenya's Court of Appeal gave Mombasa Cement a second chance to defend a major land case, ruling the lower court wrongly ignored a conflicting 2012 judgment.

What this practically means

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Executive summary

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The Court of Appeal at Malindi allowed Mombasa Cement Limited's first appeal against a ruling of Olola, J of the Environment and Land Court delivered on 27th May 2020, which had declined to set aside an ex parte judgment entered on 11th October 2018 in consolidated suits brought by Samuel Charo Kitsao and 34 others over land at Vuma-Maweni/Takaungu in Kilifi District. Two applications had been before the ELC: the appellant's application of 12th February 2019 seeking stay of execution, setting aside of the ex parte judgment and re-opening of the defence case, premised on the illness of its witness's wife; and an application by the Trustees of the Mazrui Community Wakf Lands Trust to be enjoined, which was dismissed and not appealed. The ELC found the illness unproven for want of medical evidence and the delay of almost a year unexplained, and declined the application. The Court of Appeal, applying the Mbogo v Shah standard for interfering with discretionary decisions, held the ELC judge misdirected himself: the adjournments were not all attributable to the appellant's witness, the initial witness having been ill, travelled and eventually died; and the judge disregarded a 2012 High Court judgment touching ownership of 9100 acres in the same area, a serious matter that could not be resolved in submissions. The Court set aside the ruling in its entirety, allowed the appellant's application to the extent of re-opening the defence case, directed the matter before any ELC judge other than Olola, J, and ordered each party to bear their own costs of the appeal.

Key legal issues

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01

Interference with discretionary decisions on appeal

Holding

The ELC's decision was clearly wrong due to misdirection and failure to consider relevant matters, justifying appellate intervention

Reasoning

The Court applied the Mbogo v Shah standard: discretion is interfered with where the decision is clearly wrong, from misdirection or failure to consider relevant matters. The ELC disregarded the existence of a 2012 High Court judgment touching ownership of 9100 acres in the same area, a matter that could not be resolved in submissions and which could have changed the outcome.

02

Setting aside ex parte judgment and re-opening defence

Holding

The appellant's excuse for non-attendance, though unsupported by medical proof, had to be weighed against the record showing adjournments not all attributable to the appellant's witness

Reasoning

The Court held documentary proof of illness would have strengthened the application but was not decisive. The record showed the initial witness, Mr. Ashok, was ill, travelled, and eventually died across eight occasions, so the adjournments were not all attributable to the witness whose absence was in issue.

p. 4
03

Conflict with prior High Court judgment on suit property

Holding

The existence of a 2012 High Court judgment touching ownership of land in the same area was a serious matter the ELC should have considered

Reasoning

The judgment annexed to Mr. Sidik's affidavit showed it touched ownership of 9100 acres in the same area as the disputed land. The Court held this was important and could not be determined in submissions by counsel, and that had the ELC considered it, it could have reached a different conclusion.

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a lower court unless the decision is clearly wrong, based on misdirection, consideration of irrelevant matters, or failure to consider relevant matters resulting in a wrong conclusion
  • The power to set aside an ex parte judgment is unfettered and is exercised to avoid hardship from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays justice

Court orders

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  1. 1.The ruling of J.O. Olola, J delivered at Malindi on 27th May 2020 is set aside in its entirety
  2. 2.The application dated 12th February 2019 by the appellant is allowed to the extent that the appellant's defence case is re-opened for hearing
  3. 3.The matter be placed for hearing before any judge in the ELC other than Olola, J
  4. 4.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Mazrui Land Trust Actrepeal

Cases cited (6)

  • Pithon Waweru Maina v Thuka Mugiria
    (1983) eKLR

    Relied on by appellant's counsel for the proposition that a defence raising triable issues should be considered

  • Philes Nyokabi Kamau v ICDC
    Civil Appeal 263 of 2014

    Relied on by respondents' counsel on when an appellate court may interfere with a judge's discretion

  • Mulemi v Angweye & another
    (Civil Appeal 170 of 2016) [2021] KECA 214 (KLR) (Civ) (5 November 2021)

    Principles governing challenge to exercise of discretion of a Superior Court

  • Mbogo & Another vs. Shah
    [1968] E.A 93

    Court will not interfere with discretion unless decision is clearly wrong, from misdirection or failure to consider relevant matters

  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75

    Discretion to set aside ex parte judgment is unfettered, to be exercised on such terms as the judge thinks fit

  • Shah v Mbogo
    [1967] EA 116

    Power to set aside is to avoid hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

On appeal from
Environment and Land Court at Malindi
ELC Case 46 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal from the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mombasa Cement Limited v Kitsao & 34 others", Case Analysis (2022). Civil Appeal E016 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/562/eng@2022-06-24

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