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Court of AppealDismissedNot stated in the judgment· [2024] KECA 1228 (KLR)

Faima Ventures Limited & 2 others v Kenya Orient Insurance Limited (Civil Appeal 110 of 2019) [2024] KECA 1228 (KLR)

Court of Appeal of Kenya
20 September 2024
DMD. K. MusingaASAsike-MakhandiaSKS. Gatembu Kairu
1,476 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to overturn two lower courts that refused a party more time to pay court-ordered costs after missing a 14-day deadline.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi, decided on 20th September 2014 by a bench of D. K. Musinga (P), Asike-Makhandia and S. Gatembu Kairu, JJAs, in a single unanimous judgment. The underlying dispute was a claim for goods sold and services rendered in the Chief Magistrates' Court at Nairobi. The appellants, though entering appearance, never filed a defence; interlocutory and then ex-parte judgment was entered against them on 25th April 2014. Their application to set aside the judgment was dismissed for want of prosecution; a reinstatement was granted conditionally on payment of thrown-away costs of Kshs. 10,000 within 14 days, failing which the application would stand dismissed. The condition was not honoured, and an extension-of-time application was dismissed by the trial court, which held that court orders cannot be made in vain and that unexplained non-compliance is an abuse of process. The High Court (Mbogholi, J.) dismissed the first appeal, finding no error of principle. On the second appeal, canvassed by written submissions, the appellants argued the delay was only four days and asked the Court to exercise its discretion; the respondent maintained only points of law lay before the Court. The Court of Appeal applied the Madan JA test in United India Insurance and held that neither court below misdirected itself in law, misapprehended the facts, nor considered irrelevant or omitted relevant considerations. It further held that the issues raised were, save for the exercise of discretion, matters of fact which divest a second-appeal court of jurisdiction. The appeal was dismissed with costs to the respondent, affirming the concurrent findings of the two courts below.

Key legal issues

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01

Interference with discretionary decisions of lower courts

Holding

The Court will not interfere with concurrent discretionary findings where the courts below neither misdirected themselves in law nor misapprehended the facts or considered irrelevant, or failed to consider relevant, factors.

Reasoning

Restating the Madan JA test in United India Insurance, the Court held that an appellate court rarely interferes with discretion simply because it would have weighted factors differently. Both courts below stated their reasons clearly; the trial court found the appellants' non-compliance with a conditional reinstatement order an abuse of process, and the High Court found no error of principle. No ground for interference was established.

p. 3
02

Scope of a second appeal

Holding

A second appeal lies on matters of law only; factual complaints divest the Court of jurisdiction.

Reasoning

The Court agreed with the respondent that all issues raised by the appellants, save the ground on exercise of discretion, were matters of fact which divest the second-appeal Court of jurisdiction to entertain them, citing Otieno Ragot & Company Advocates vs. National Bank of Kenya Limited.

p. 3
03

Duty to give reasons when exercising discretion

Holding

A judge or magistrate exercising discretion must explain the basis of the decision; the trial court here did so expressly.

Reasoning

The Court observed that the trial court's reasons - that court orders cannot be made in vain, that allowing breach would occasion injustice, and that unexplained non-compliance is an abuse of process - were clearly stated, thereby discharging the burden of accounting for the discretionary decision.

p. 2

Legal principles established

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  • An appellate court will not interfere with a discretionary decision of the court below unless the judge misdirected himself in law, misapprehended the facts, took into account matters he should not have, failed to take account of matters he should have, or the decision is plainly wrong
  • On a second appeal, the Court of Appeal can only consider matters of law; issues of fact divest it of jurisdiction
  • A judge or magistrate exercising judicial discretion must explain the basis of their decision to discharge the burden of accounting for it

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act/Order 42 of the Civil Procedure 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, "Faima Ventures Limited & 2 others v Kenya Orient Insurance Limited (Civil Appeal 110 of 2019) [2024] KECA 1228 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1228/eng@2024-09-20

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