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Court of AppealDismissedCourt of Appeal, Mombasa (appeal against ruling in High Court Family Division, Matrimonial Cause No 5 of 2016)· [2023] KECA 470 (KLR)

JKK v MWK (Civil Appeal E030 of 2020) [2023] KECA 470 (KLR)

Court of Appeal of Kenya
28 April 2023
3,384 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 dismissed a litigant's appeal, confirming that clients must personally track their cases and cannot blame lawyers for unexplained delays.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against a ruling of the High Court (Family Division, Mombasa) delivered on September 20, 2019 in Matrimonial Cause No 5 of 2016, a dispute over ownership of property acquired during a marriage dissolved in Divorce Cause No 3 of 2011. The appellant's case had been marked closed after neither he nor his counsel attended the defence hearing on December 11, 2018. He filed an application on December 20, 2018 seeking to reopen the suit but never prosecuted it. On March 5, 2019 the Judge fixed the matter for a ruling on May 10, 2019, which both parties treated as a dismissal of the December 2018 application. Nearly two months later, on April 30, 2019, the appellant applied to set aside that purported dismissal and reinstate the application; the High Court dismissed that application with costs. The Court of Appeal held that the December 2018 application had in fact never been determined - the Judge had merely given directions to proceed to decision notwithstanding its pendency - so the reinstatement application was misconceived. Applying the Apungu Arthur Kibira test, the Court found no error of law or principle, no irrelevant or ignored consideration, and nothing plainly wrong in the Judge's exercise of discretion. It endorsed the principle that a client bears a duty of due diligence in prosecuting his own case notwithstanding counsel's mistakes, and emphasised the public policy favouring expedition. The appeal was dismissed with costs to the respondent on April 28, 2023.

Key legal issues

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01

Whether the application dated December 20, 2018 was ever dismissed so as to be capable of reinstatement

Holding

The Court found the application was never determined; only directions were given, so the April 30, 2019 reinstatement application was misconceived.

Reasoning

On March 5, 2019 the matter was up for mention on submissions, and counsel sought directions on the pending application. The Judge fixed the matter for what she called a ruling on May 10, 2019, but what she directed was delivery of her decision notwithstanding the pendency of the application. Both court and parties then proceeded under a misapprehension that the application had been dismissed, when in fact no dismissal had occurred, leaving nothing to reinstate.

p. 5
02

Whether the Learned Judge's discretion in dismissing the April 30, 2019 application could be disturbed

Holding

The Court found no basis for interference: no error of law or principle, no irrelevant considerations, no ignored relevant consideration, and the decision was not plainly wrong.

Reasoning

Applying the Apungu Arthur Kibira standard, the Court examined the procedural history: the appellant failed to attend the defence hearing on December 11, 2018 without explanation, took no steps on his December 20, 2018 application, filed no submissions, and only moved nearly two months later. The Judge's dismissal was a judicious exercise of discretion based on relevant factors, and the Court would not substitute its own view merely because it might have decided differently.

p. 6
03

Whether the mistake of the appellant's advocate, and his right to be heard, excused the delays

Holding

The client bears responsibility for due diligence in his own case; the right to be heard does not excuse a litigant who squanders the opportunities given.

Reasoning

The High Court had noted the appellant gave scant respect for rules and timelines and exhibited an intention to delay judgment. The Court of Appeal endorsed this, holding that although a mistake of an advocate should not ordinarily be visited on the client, the client must demonstrate due and reasonable diligence. The appellant neither attended the defence hearing nor prosecuted his own application, so the constitutional right to be heard did not avail him.

p. 2

Legal principles established

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  • An appellate court will not interfere with a trial court's exercise of discretion unless there is an error of law or principle, an irrelevant consideration was taken into account, a relevant consideration was ignored, or the decision is plainly wrong.
  • A client, not merely counsel, is obligated to demonstrate due and reasonable diligence in the pursuit of his case; delay and disregard of rules and timelines may cost a litigant his day in court.
  • Public policy demands that the business of the courts be conducted with expedition and that actions be brought to trial with reasonable expedition.
  • Where a court gives directions rather than a determination on a pending application, the application is not dismissed; an opposed ruling must be self-contained under Order 21 rule 4 of the Civil Procedure Rules, so no reinstatement application can lie.

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 50(1)
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 20 rule 4 (now Order 21 rule 4)

Cases cited (18)

  • Burhani Decorators & Contractors v Morning Foods Ltd & Another
    [2014] eKLR
  • Phillip Chemwolo & Another v Augustine Kubende
    [1982-88] KAR 103
  • Belinda Murai & Others v Amos Wainaîna
    [1978] KLR 278
  • Nguruman Limited v Shompole Group Ranch & Another
    (2014) eKLR
  • Phillip Kitonga Mulei & Others v Justus Musyoki Mangui
    [2018] eKLR
  • Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 Others
    [2019] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Moses Mwangi Kimari v Shammi Kanjirapparambil Thomas & 2 others
    [2014] eKLR
  • Savings and Loans Ltd v Susan Wanjiru Muritu
    Nairobi HCC 397 of 2002
  • Anna Kamorinjithi v David Munene; Pauline Wangithi & 4 others (Interested Parties)
    [2021] eKLR
  • Omwoyo Vs African Highlands & Produce Co Ltd
    [2002] eKLR
  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholan
    [1955], 22 EACA 270
  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Godffrey Gatere Kamau v Peter Mwangi Njuguna
    Civil Appeal No 139 of 2003
  • Kacem v Bashir
    [2010] NZSC 112; (2011) 2 NZLR 1
  • Price & Another v Hilder
    [1986] KLR 95
  • Kiriisa v Attorney-General and Another
    [1990-1994] EA 258
On appeal from
High Court of Kenya at Mombasa, Family Division
Matrimonial Cause No 5 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited in the judgment)

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, "JKK v MWK (Civil Appeal E030 of 2020) [2023] KECA 470 (KLR)", Case Analysis (2023). Court of Appeal, Mombasa (appeal against ruling in High Court Family Division, Matrimonial Cause No 5 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/470/eng@2023-04-28

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