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ELCAllowedELC Appeal No. 10 of 2019 (formerly Civil Appeal No. 262 of 2018)· [2021] KEELC 4133 (KLR)

African Banking Corporation Limited v Rajan Rajnikant Dhanani [2021] KEELC 4133 (KLR)

Environment and Land Court
25 February 2021
3,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a Kshs.12.5 million default judgment against a bank, ruling a missing court file explained the nine-day delay in filing its defence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against the ruling of Hon. K. L. Orenge, Senior Resident Magistrate, in Milimani CMCC 9277 of 2017 dismissing the appellant's application to set aside a default judgment entered in default of filing a defence. The underlying suit was brought by the respondent, the successful purchaser of the suit property Kikuyu/Township/214 at a public auction, seeking delivery of vacant possession and Kshs.12,500,000 as five months' rent. Komingoi J framed four issues, chiefly whether the magistrate erred in finding the appellant had not given sufficient reasons for the late defence, whether the draft defence raised triable issues, and whether upholding the ex parte judgment denied the appellant a hearing. The court found the magistrate overlooked a letter dated 21st February 2018 to the Executive Officer evidencing efforts to file the defence while the court file was missing at the registry; that the advocate could properly swear to the missing file; that the nine-day delay was not inordinate; and that the draft defence raised bona fide triable issues going to the root of the matter, including that the appellant was not in possession or collecting rent and was pursuing eviction of occupants in a separate suit. The court further held the magistrate erred in finding the judgment regular when a final money award was made without proof. Allowing the appeal, the court set aside the magistrate's ruling and the ex parte judgment, directed retrial before another magistrate, and ordered the costs of the appeal to abide the outcome of the main suit.

Key legal issues

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01

Sufficiency of explanation for the delay in filing defence

Holding

The trial magistrate erred by failing to take into account the letter dated 21st February 2018 to the Executive Officer demonstrating efforts to file the defence when the court file went missing; the delay of nine days was not inordinate.

Reasoning

The appellant's Legal Officer deponed that the advocates made several trips to the registry but the file was reported missing, and a letter dated 21st February 2018 to the Executive Officer was on the record. The magistrate's ruling denied the existence of any such letter. The court held the letter showed genuine efforts to file the defence, that the advocate could swear to the missing file, and the nine-day delay was excusable.

p. 3
02

Whether the draft defence raises triable issues

Holding

The statement of defence dated 30th January 2018 raises triable issues going to the root of the subject matter, and the magistrate was obliged to consider it.

Reasoning

Relying on CMC Holdings and Equatorial Commercial Bank, the court held the magistrate should have assessed the annexed draft defence. The defence asserted the appellant was not in possession, not collecting rent, and was pursuing eviction of occupants in a separate suit (Eliud Muigai Kiongo v African Banking Corporation), which the court found bona fide issues deserving a hearing on the merits.

p. 4
03

Denial of the right to be heard and unsupported money decree

Holding

The trial magistrate erred in upholding the ex parte judgment, denying the appellant an opportunity to be heard, and in finding the judgment regular when a final money award of Kshs.12,500,000 was made without proof.

Reasoning

The court found it draconian to uphold a final judgment where the defendant offered a sufficient explanation for default and raised bona fide triable issues. It further noted the liquidated sum awarded as rent was unsupported by proof of income accounts, compounding the error in declining to set aside the judgment.

p. 4

Legal principles established

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  • In an application to set aside a regular default judgment, the court exercises an unfettered discretion taking into account the reason for default, the time elapsed, whether the defence raises triable issues, prejudice and the interests of justice.
  • A triable issue need not be one the defendant would ultimately succeed on; it need only be bona fide.
  • An appellate court should not interfere with the exercise of discretion by a trial court unless it misdirected itself or arrived at a wrong decision.

Court orders

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  1. 1.Appeal allowed in its entirety
  2. 2.Ruling dated 28th May 2018 by Hon. K. L. Orenge (Mr.) Senior Resident Magistrate set aside in its entirety
  3. 3.Ex parte judgment entered on 21st February 2018 set aside
  4. 4.Matter to proceed before another magistrate other than Hon. K. L. Orenge (Mr.) Senior Resident Magistrate
  5. 5.Costs of the appeal to abide the outcome of the main suit in the lower court

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11

Cases cited (20)

  • Efil Enterprises Limited & 2 Others vs Air Travel & Related Studies Limited
    [2018] eKLR
  • Tree Shade Motors Ltd vs DT Dobie & Company (K) Ltd & Another
    Civil Appeal No 38 of 1998
  • CMC Holdings Ltd vs James Mumo Nzioki
    [2004] eKLR
  • James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another
    [2016] eKLR
  • Wachira Karani vs Bildad Wachira
    [2016] eKLR
  • Nicholas Salat vs IEBC & 6 Others
    CA (Application No 228 of 2013)
  • Edwards Kings Onyancha t/a Mantra International Associates vs China Jiangsu IETC Corporation & 8 Others
    [2013] eKLR
  • Mint Holdings Ltd & Another vs Trust Bank Ltd
    [2014] eKLR
  • Hillary Rotich vs Wilson Kipkore
    [2018] eKLR
  • East African Foundry Works (K) Limited vs Kenya Commercial Bank Limited
    [2002] 1KLR
  • NWN (minor suing through next friend 2nd plaintiff), & another vs Synohydro Co. Ltd & 2 Others
    [2016] eKLR
  • Equatorial Commercial Bank Ltd vs Jodam Engineering Works Limited & 2 Others
    [2014] eKLR
  • Olympic Escort International Co. Ltd & 2 Others vs Parminder Singh Sandhu & Another
    (2009) eKLR
  • Toshike Construction Company Limited vs Harambee Cooperative Savings & Another
    [2019] eKLR
  • Piston Waweru Maina Case
  • Patel vs EA Cargo Handling Services Ltd
    [1974] EA 75
  • Shah vs Mbigo
    [1967] EA 116
  • Shabir Din vs Ram Parksash Anand
    [1955] 22 EACA
  • Mbogo vs Shah
    [1968] EA 93
  • Eliud Muigai Kiongo vs African Banking Corporation & 3 Others
    Milimani ELC 459 of 2015
On appeal from
Chief Magistrate's Court, Milimani
CMCC 9277 of 2017
Jurisdiction invoked
First appeal from the ruling of the Senior Resident Magistrate in CMCC 9277 of 2017

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, "African Banking Corporation Limited v Rajan Rajnikant Dhanani [2021] KEELC 4133 (KLR)", Case Analysis (2021). ELC Appeal No. 10 of 2019 (formerly Civil Appeal No. 262 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4133/eng@2021-02-25

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