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Court of AppealDismissedCivil Appeal 19 of 2020· [2022] KECA 639 (KLR)

Kidada & another v Mutua

Court of Appeal
24 June 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,646 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 confirmed that parties who ignore court deadlines and conditions lose their right to reopen judgments, even when their lawyer made mistakes.

What this practically means

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Executive summary

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The Appellants appealed to the Court of Appeal against the High Court's dismissal of their first appeal, which had upheld the trial Magistrate's ex parte judgment ordering them to refund Kshs 800,000 with interest, general damages of Kshs 50,000 and costs for breach of a sale agreement over a house on parcel MN/I/3015. The appeal was argued on two limbs: the Appellants' constitutional right to be heard, and the principle that an advocate's mistake should not be visited on a client. The Respondent raised a preliminary objection that the memorandum and record were filed outside the 60-day period in Rule 80(1)(a) and (b) of the Court of Appeal Rules; the Court held that because the Respondent did not apply to strike out within the Rule 84 timelines, the appeal remained on record. On the merits, the Court reaffirmed that a second appeal lies only on matters of law and that an appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong. Applying Pithon Waweru Maina v Thuka Mugiria and the Shah v Mbogo line of authority, the Court found the hearing date had been taken by consent in the presence of the Appellants' advocates, that the trial court had already set aside the judgment once on condition the Appellants deposit Kshs 850,000 - a condition they never fulfilled despite a notice to show cause - and that the rights to a hearing and to be shielded from counsel's mistakes are not absolute where a party has slept on its rights. Noting also that Kshs 500,000 of the decretal sum had been paid, the Court dismissed the appeal with costs to the Respondent.

Key legal issues

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01

Scope of second appellate jurisdiction

Holding

The Court's mandate on a second appeal is limited to issues of law; it must resist delving into matters of fact unless the courts below considered or failed to consider matters they should not have or should have, or the decision is perverse.

Reasoning

The Court adopted the settled position in Stanley N Muriithi and Kenya Breweries Ltd v Godfrey Odoyo that a second appeal lies only on matters of law under Section 72(1) of the Civil Procedure Act, and that failure by the first appellate court to re-evaluate evidence and thereby reach a wrong conclusion is a point of law.

p. 2
02

Discretion to set aside ex parte judgment

Holding

The discretion to set aside an ex parte judgment is free and intended to avoid injustice from accident, inadvertence or excusable mistake, but is not designed to assist a person who has deliberately obstructed or delayed the course of justice.

Reasoning

Relying on Pithon Waweru Maina v Thuka Mugiria and the authorities therein (Patel v EA Cargo Handling Services, Shah v Mbogo, Shabir Din v Ram Parkash Anand), the Court held the High Court correctly exercised its discretion in refusing to reopen the case where the hearing date was taken by consent and conditions for setting aside were not complied with.

p. 4
03

Right to be heard and advocate's mistake

Holding

The constitutional right to be heard and the principle that an advocate's mistake should not be visited on a client are not absolute where a party has slept on its rights and injustice would result to the other party.

Reasoning

The Appellants' advocates consented to the hearing date, failed to comply with the condition for setting aside the judgment (deposit of Kshs 850,000), and execution had already ensued; part of the decretal sum had been paid, overtaking the appeal to that extent.

p. 5
04

Preliminary objection on late filing of appeal

Holding

Since the Respondent never applied to strike out the Notice of Appeal and appeal within the timelines specified in Rule 84 of the Court of Appeal Rules, the appeal remains on record notwithstanding non-compliance with Rule 80(1)(a) and (b).

Reasoning

The Respondent's preliminary objection was based on failure to file the memorandum and record within 60 days of the Notice of Appeal, but the objection itself was not brought within the Rule 84 window, so the appeal remained validly on record.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with the exercise of a judge's discretion unless the judge misdirected himself or was clearly wrong, resulting in a wrong decision or injustice.
  • The right to a hearing and the principle that an advocate's mistake should not be visited on a client are not absolute, especially where a party has slept on its rights and injustice would be caused to the other party.

Court orders

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

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 72(1)
  • Court of Appeal RulesRule 80(1)(a) and (b)
  • Court of Appeal RulesRule 84
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (10)

  • Stanley N Muriithi & Another v Bernard Munene Ithiga
    [2016] eKLR

    Second appeal limited to matters of law under Section 72(1) of the Civil Procedure Act

  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR (Civil Appeal No. 127 of 2007)

    Second appeal confined to matters of law unless courts below considered or failed to consider relevant matters or decision is perverse

  • Peter Macharia Kariuki vs James Kibara & Anor
    [2020] eKLR

    Courts must consider the overriding objective when making rulings and interpreting civil procedure rules

  • Esther Chege v James Kiyagi Amaingu
    [2019] eKLR

    Overriding objective of just determinations in rulings and directions

  • Philip Chemwolo & Another v Augustine Kubende
    [1982-88] KAR 103

    Mistakes should not necessarily lead to a party being denied a hearing on merit

  • Pithon Waweru Maina vs Thuka Mugiria
    [1983] eKLR

    Principles governing exercise of discretion to set aside ex parte judgment; whether discretion was exercised judicially is a question of law

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

    No limits on judge's discretion to vary judgment except on such terms as may be just

  • Shah v Mbogo
    [1967] EA 116

    Discretion to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction

  • Mbogo v Shah
    [1968] EA 93

    Approved Shah v Mbogo; appellate court should not interfere with discretion unless judge misdirected himself or was clearly wrong

  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48

    Court's discretion is perfectly free; negligent mistake of legal advisers may be a ground for relief depending on facts

On appeal from
High Court at Mombasa
Mombasa High Court Appeal No 34 of 2017
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act - second appeal limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kidada & another v Mutua", Case Analysis (2022). Civil Appeal 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/639/eng@2022-06-24

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