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ELCDismissed· [2017] KEELC 2916 (KLR)

David Sila Onyango v National Bank of Kenya & another [2017] KEELC 2916 (KLR)

Environment and Land Court
10 May 2017
SKS.M. Kibunja
1,487 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to lift injunction orders against a bank because its lawyers missed court deadlines for filing responses, and the court would not excuse the delay.

What this practically means

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Executive summary

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The Defendants, National Bank of Kenya Limited and Purple Royal Auctioneers, moved the court by notice of motion dated 27th September 2016 seeking to vary, discharge or set aside ex parte orders issued on 22nd September 2016 in favour of the Plaintiff in his application dated 14th June 2016, leave to file a replying affidavit out of time, and an order that the Plaintiff deposit the outstanding loan amount into court or a joint advocates' account. The Plaintiff opposed through a replying affidavit and written submissions. The court framed three issues: whether sufficient and justifiable reasons existed to vary or set aside the earlier orders, what orders to issue, and costs. The court held that the Plaintiff's reliefs were equitable, requiring clean hands and full disclosure, and that it had discretion under Order 40 Rule 7 to vary or set aside its orders. However, it found the Defendants' failure to file replying papers by the hearing date, contrary to the consent orders of 30th June 2016, was not an excusable mistake - counsel had on 22nd September 2016 admitted she did not know why no replying papers had been filed. The court invoked section 1A(3) of the Civil Procedure Act, holding that late filing would cause further delay and expense contrary to the overriding objective. Prayer 4, being interim, had lapsed. The notice of motion dated 27th September 2016 was dismissed with costs in the cause.

Key legal issues

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01

Whether the ex parte orders of 22nd September 2016 should be varied or set aside

Holding

The application to vary or set aside was declined because the Defendants had not filed any replying papers controverting the Plaintiff's evidence

Reasoning

The court found the reliefs granted to the Plaintiff were equitable in nature requiring clean hands and full disclosure, but the Defendants' application failed because they had not filed replying papers to rebut the Plaintiff's pleaded and deponed facts. Uncontroverted facts could not support variation of the orders, and the delay in filing would contravene the overriding objective.

p. 3
02

Whether leave should issue to file a replying affidavit out of time

Holding

Leave refused; counsel's failure to file was not an excusable mistake

Reasoning

Order 51 Rule 4 requires a party opposing an application to file grounds of opposition, a replying affidavit or a preliminary objection. The Defendants filed none by the hearing date. Counsel's own statement on 22nd September 2016 showed the omission was unexplained, and section 1A(3) of the Civil Procedure Act obliges parties to comply with directions; allowing late filing would cause delay and expense.

p. 3

Legal principles established

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  • A litigant seeking equitable remedies must come to court with clean hands and make full and candid disclosure of all material facts
  • The court retains discretion to set aside or vary its ex parte injunction orders under Order 40 Rule 7 of the Civil Procedure Rules
  • Failure by counsel to file replying papers contrary to a consent order, unexplained, is not an excusable mistake justifying leave to file out of time

Court orders

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  1. 1.Prayer 2 of the notice of motion dated 27th September 2016 (to vary, discharge and/or set aside the orders issued on 22nd September 2016) declined
  2. 2.Leave to file a replying affidavit to the Plaintiff's application dated 14th June 2016 refused
  3. 3.Prayer 4 (deposit of the outstanding loan amount) noted as having lapsed, being interim in nature
  4. 4.The notice of motion dated 27th September 2016 dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 51 Rule 4
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 1A(3)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 1A(1)

Cases cited (6)

  • Harrish Chandra Bhovanbhai Jobanputra & another -V- Paramount Universal Bank Ltd & 3 Others
    [2014] eKLR
  • Paul Asin t/a Asin Supermarket -V- Peter Ukembi
    [2013] eKLR
  • Shah -V- Mbogo & Another
    1967 E.A 116
  • Charles Omwata Omwoyo -V- African Highlands & Produce Co. Ltd
    (2002) eKLR
  • Ketteman -V- Hausel Properties Ltd
    (1988) 1 All ER 38
  • Tana & Athi River Development Authority -V- Jeremiah Kimigho Mwakia & 3 Others
Jurisdiction invoked
Not stated in the judgment; the court exercised its discretion under Order 40 Rule 7 and Order 51 Rule 4 of the Civil Procedure Rules

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, "David Sila Onyango v National Bank of Kenya & another [2017] KEELC 2916 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2916/eng@2017-05-10

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