Mumias Sugar Company Limited v Martin Wesonga Kadima (Cause 10 of 2015) [2016] KEELRC 1418 (KLR)
The bottom line
#A Kenyan court ruled Mumias Sugar deserved a chance to defend its case, because its earlier application was struck out on a technicality and never actually decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the second application to set aside the ex parte judgment was res judicata
It was not res judicata because the first application was struck out on the ground of counsel's suspension and was never heard and finally decided on the merits.
Section 7 of the Civil Procedure Act requires four ingredients, including that the issue in the former suit was heard and finally decided. The first application was a replica of the second, but it was struck out solely because counsel lacked a practicing certificate at filing; the draft defence was never considered and the matters in issue were never heard and decided. The Keharchand v Jan Mohamed decision supports the conclusion that where the issue was not heard and finally decided, res judicata does not arise.
Whether the magistrate applied wrong principles in refusing to set aside the ex parte judgment
The magistrate's discretion was exercised wrongly in principle by focusing solely on counsel's practicing certificate and failing to consider the draft defence.
The established principles in Shah v Mbogo and C.M.C. Holdings Ltd v Nzioki require a judicious discretion considering the nature of the action, the defence, and whether the plaintiff can be compensated by costs. The trial court never considered the merits or the draft defence annexed to the application; its sole point of departure was the practicing certificate, despite counsel holding a valid one by then. Following Sebei District Administration v Gasyali, denying a litigant a hearing should be the last resort.
Territorial jurisdiction of the Kakamega magistrate's court
The objection fails; the Kakamega court had jurisdiction since Mumias was in Kakamega district at the time of filing, and the jurisdiction issue was never raised in the trial court.
Section 15 of the Civil Procedure Act governs territorial jurisdiction, but section 3(2) of the (now repealed) Magistrates Courts Act conferred jurisdiction throughout Kenya, as held by Ringera J in Mohamed Sitaban v George Mwangi Karoki. The jurisdiction issue was only raised in the draft defence which never saw the light of day. At filing, Mumias was in Kakamega district, so Kakamega was the proper court; the appellant did not seek transfer to Mumias in any event.
Legal principles established
#- A matter struck out on grounds of counsel's lack of a practicing certificate is not heard and finally decided, so it is not res judicata.
- An appellate court will not interfere with a discretion to set aside an ex parte judgment unless it was exercised wrongly in principle or perversely.
- A court should consider a defence brought to its attention however irregularly; denial of a hearing should be the last resort.
- Section 3(2) of the (now repealed) Magistrates Courts Act conferred jurisdiction on magistrates' courts throughout Kenya, displacing the territorial limits in section 15 of the Civil Procedure Act.
Court orders
#- 1.The ruling of the lower court made on 21st July 2014 is set aside
- 2.An order allowing the application dated 10th April 2014 in its place
- 3.The appellant is granted leave to file a defence in Kakamega CMCC No. 435 of 2012
- 4.The appellant to pay the respondent's costs of the appeal
- On appeal from
- Chief Magistrate's Court Kakamega
- Kakamega CMCC No. 435 of 2012
- Jurisdiction invoked
- Appeal from the Chief Magistrate's Court pursuant to the Civil Procedure Act (section 78(1) invoked for final disposal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mumias Sugar Company Limited v Martin Wesonga Kadima (Cause 10 of 2015) [2016] KEELRC 1418 (KLR)", Case Analysis (2016). E&LR Appeal No. 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1418/eng@2016-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.