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ELCDismissedAppeal from Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013 (appeal filed 22nd June 2013)

Health Devices (K) Ltd v Bawan Limited & another [2018] KEELC 4163 (KLR)

High Court of Kenya at Mombasa
22 February 2018
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a tenant's appeal, confirming that Kenyan magistrates have wide discretion to manage cases flexibly and condition relief on paying what is owed.

What this practically means

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Executive summary

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This is a first appeal from a ruling of Resident Magistrate Hon. Ms. E. Onzere in Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013. The Appellant, Health Devices (K) Limited, had obtained interim restraining orders against distress and interference with leased premises at Olemanana House. On 26th June 2013 the trial magistrate conditionally allowed the Appellant's application, requiring deposit in court of auctioneers' charges of Kshs.192,335 and storage charges of Kshs.190,000 within 21 days, failing which the order would lapse. The Appellant appealed on nine grounds, arguing among other things that the magistrate allowed the Respondent's Advocate to give evidence from the bar without a replying affidavit, wrongly directed that two applications be heard together and disposed of by written submissions, and exhibited bias. The Respondents contended that the order appealed against was not in the record and that the appeal lacked merit. The court overruled the preliminary point, confirming the order was in the record at pages 116-117. Applying Mbogo v Shah and Karature Networks v Daly & Figgis Advocates, the court held the trial magistrate had exercised her discretion properly: the Respondent's Advocate addressed the court with leave, no objection was raised by the Appellant's counsel, and the directions on written submissions and joint hearing gave effect to the overriding objective under Sections 1A and 1B of the Civil Procedure Act. The conditional deposit order was justified by the Appellant's rent default, which occasioned the distress, and no evidence of bias or extortion was found. All nine grounds failed and the appeal was dismissed with costs to the Respondents on 22nd February 2018.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the order of 26th June 2013 appealed against is in the record of appeal
  2. 2.Whether the trial magistrate erred by allowing the Respondent's Advocate to make oral submissions without a formal replying affidavit or grounds of opposition
  3. 3.Whether the trial magistrate erred in directing that the two applications be disposed of by written submissions and heard together
  4. 4.Whether the trial magistrate erred in conditionally allowing the application by requiring deposit of auctioneers' and storage charges
  5. 5.Whether the trial magistrate was biased or lacked impartiality

Key legal issues

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01

Whether oral submissions by the Respondent's Advocate without a formal replying affidavit or grounds of opposition vitiated the ruling

Holding

No error; the Advocate addressed the court with leave of the court, and the Appellant's counsel raised no objection

Reasoning

Order 51 Rule 14 permits a respondent to oppose by replying affidavit or grounds of opposition, but the trial magistrate had granted the Respondent seven days to file a response, and the Advocate addressed the court with leave. The court's discretion requires hearing both sides, and no objection was taken by the Appellant's counsel who was present.

p. 4
02

Whether the direction that the two applications be heard together and disposed of by written submissions was erroneous

Holding

Not erroneous; it gave effect to the overriding objective under Sections 1A and 1B of the Civil Procedure Act

Reasoning

Order 51 Rule 16 allows the court to allow written submissions. Sections 1A and 1B require just, expeditious and proportionate resolution and efficient use of judicial resources. The Respondents' application of 24.6.2013 touched on the suit premises and rent arrears, so hearing the applications together was within the magistrate's case-management discretion.

p. 4
03

Whether the conditional order requiring deposit of auctioneers' and storage charges was wrong

Holding

It was proper; the Appellant defaulted on rent, occasioning the distress, and the charges had to be addressed before release of the goods

Reasoning

The Appellant was in rent arrears, as shown by correspondence between the parties' Advocates. The distress was lawfully occasioned by the Appellant's own default, and questions of auctioneers' charges and storage charges had to be dealt with before the goods could be released. The maxim that he who seeks equity must do equity applied.

p. 5
04

Whether the trial magistrate was biased or lacked impartiality

Holding

There was nothing to show bias or lack of impartiality

Reasoning

The court reviewed the subordinate court proceedings culminating in the order of 26.6.2013 and found no misdirection. The Appellant's allegations of bias and extortion were unsupported; there was no affidavit evidence of extortion, and the Appellant had admitted default in rent.

p. 6

Legal principles established

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  • An appellate court will not interfere with the exercise of a trial judge's discretion unless it is shown the judge misdirected himself or was clearly wrong resulting in misjustice
  • A court may, in furtherance of the overriding objective, direct that applications be heard together and disposed of by written submissions
  • An Advocate may address the court with leave of the court even where a formal replying affidavit has not been filed, and a court should hear and consider the case for both parties

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The preliminary point that the order dated 26th June 2013 is not in the record of appeal is overruled

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Mombasa Senior Principal Magistrate's Court (Resident Magistrate Hon. Ms. E. Onzere)
Civil Suit No. 1057 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the Resident Magistrate's court (ruling dated 21st, 24th and 28th June 2013 and order of 8th July 2013)

Relief refused

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Setting aside the Resident Magistrate's order dated 26th June 2013 allowing prayer (b) conditionally

No merit; the trial magistrate exercised her discretion properly and did not misdirect herself

p. 5

Allowing prayer (b) of the Appellant's application unconditionally

The Appellant defaulted in paying rent; auctioneers and storage charges had to be addressed before goods could be released

p. 5

Setting aside the order of 28th June 2013 and directing rehearing before another magistrate

The trial magistrate gave effect to the overriding objective; the order appealed against was properly made

p. 4

Costs

Appeal dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all I find no merit in this Appeal and the same is dismissed with costs to the Respondents.
p. 6Final orders - dismissal of appeal
The Respondents preliminary point that the order dated 26th June, 2013 is not in the record of appeal is not true.
p. 4Preliminary point on record of appeal overruled
it will not interfere with the exercise of the trial Judge’s discretion unless it is satisfied that the judge in exercising his discretion misdirected himself in some matters and as a result arrived at a wrong decision
p. 5Standard for interference with discretionary decisions
I find that the learned trial magistrate did not err by directing that the two applications be heard together and that they be disposed of by written submissions.
p. 5Overriding objective and case management

Issues in the judgment

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minor

Judgment states the appeal was filed on 22nd June 2013, yet the challenged order was made on 26th June 2013

minor

Judgment dated and delivered on 22nd February 2018 although the chronology records events only up to October 2017 submissions and a 5th October 2017 absence

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, "Health Devices (K) Ltd v Bawan Limited & another [2018] KEELC 4163 (KLR)", Case Analysis (2018). Appeal from Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013 (appeal filed 22nd June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4163/eng@2018-02-22

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