James Nduhiu Macharia v Mwotia Macharia

Court of Appeal, at Nyeri October 28, 1986

Kneller, Nyarangi JJA & Gachuhi Ag JA

Civil Appeal No 105 of 1985

(Appeal from a Ruling and Order at the High Court at Nyeri, Patel J)

Civil Practice & Procedure – judgments - setting aside of dismissal of suits – applications to set aside or vary the judgments and orders – exercise of discretion over applications to set aside limitations on exercise of this discretion – purpose and object of discretionary power – factors to be considered when exercising discretion – Civil Procedure Rules order IXB

Judicial discretion – exercise of guiding principles – object and purpose of discretionary powers as set out in Civil Procedure Rules order IXB rule 8.

The appellant sued the respondent in the High Court seeking orders of eviction and general damages for unlawful occupation of a parcel of land by the respondent. The High Court gave judgment in favour of the respondent’s counterclaim.

The appellant filed summons in chambers under order IXB rule 8 of the civil procedure rules asking for the judgment and order on the counterclaim to be set aside. The application was dismissed hence this appeal.

Held:

1. In applications to set aside under order IX B rule 8, the court has a wide discretion. There are no restrictions on the discretion except that if the judgment is varied, it is done on terms that are just.

2. The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.

3. The factors that must be considered when exercising this discretion include the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any material factors.

4. The following factors should be considered when exercising this discretion:

a) the nature of the action;

b) the defence if it has been brought to the notice of the court

c) the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned; and

d) that denying a party a hearing should be the last resort.

5. Discretionary power should be exercised judicially, meaning it should be exercised in a selective manner and not arbitrarily.

Appeal allowed.

Cases

1. Patel v EA Cargo Handling Services Ltd [1974] 75

2. Shah v Mbogo [1967] EA 116

3. Jesse Kimani v McConnell & another [1966] EA 547

4. Sebei District Administration v Gasyali & others [1968] EA 300

5. Jamnadas Sodha v Gordandas Hemraj (1952) 7 ULR 11

6. Mbogo & another v Shah [1968] EA 93

7. Smith v Middleton 1972 SC 30

8. Cookson v Knowles [1978] 2 WLR 798

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IXB rule 8; order LI

2. Civil Procedure (Amendment) Rules 1984 (cap 21 Sub Leg) rule 5(b)

Advocates

Mr Waweru for the Appellant.

Mr Mahan for the Respondent.

Kihuni v Gakunga & another

Court of Appeal, at Nyeri October 9, 1986

Hancox, Nyarangi JJA & Gachuhi Ag JA

Civil Appeal No 61 of 1985

(Appeal from the High Court at Nyeri, Patel J)

Arbitration – reference to – upon agreement of parties - whether reference can subsequently be challenged by the same parties who requested it – discretion of the court when ordering reference – when an award can be remitted for reconsideration.

Arbitration – issues - referred to arbitration – powers of the arbitrators to deal with issues – whether arbitrators can deal with issues not referred to them.

Civil Practice and Procedure – amendment of pleadings – at appeal – power to grant order to amend – exercise of such power.

The respondents had sued the appellants for a declaration that they were joint owners of the suit property and in the alternative sought compensation. The parties at some stage agreed to refer the matter to arbitration. Subsequently the arbitrator’s award was read out, upon which the appellant made an application to set it aside. The application was dismissed prompting this appeal on the ground that the judge in dismissing the application had failed to see the legal issues, to note the case was time barred, that the respondents had proved their case and that the award and ruling was against the weight of the evidence.

Held:

1. A party cannot be heard to challenge issues referred to arbitration, especially in a case such as this where the parties and their respective advocates drew the issues. The parties are deemed to know the real questions between them.

2. The arbitrators will consider evidence on issues which are referred to them. The issue of limitation was raised in the defence but was not brought before the arbitrators. That aspect of his defence as far as the arbitration was concerned is deemed to have been abandoned.

3. Failure to deliberate or otherwise to frame a particular issue cannot be construed as an admission.

4. In any suit, where parties not under disability agree that any matter between them be referred to arbitration, as the case was here, the court has no discretion in the matter once the parties apply to the court for an order of reference.

5. Once parties have obtained an order for reference to arbitration subsequent to their own application, they are estopped from attacking the order of reference.

6. An estoppel can arise from silence or inaction if a party is under a duty to speak or to act in a particular way.

7. According to the Civil Procedure Rules order XLV rule 14(1)(c), an award can only be remitted for re-consideration by arbitrators where there has been an objection to the legality of the award which is apparent on the face of the record.

8. Although the court has the power on appeal to give leave to a party to amend his pleadings, such leave is only given where there has been an inadvertent omission and where all the material necessary is before the court and there is no need for further evidence to be taken.

9. Res judicata is a matter of pleading and can only be properly raised at the trial.

Ground 3 of Memorandum of appeal dismissed. Leave to amend accordingly refused, orders accordingly.

Cases

1. Darcy v Jones [1959] EA 121

2. Oriental Dairy v De Souza (1948) 23 (1) KLR 4

3. Moorgate Mercantile Co v Twitchings [1977] AC 890; [1975] 3 All ER

314 (CA); Reversed in [1976] 2 All ER 641 (HL)

4. Mandavia v Singh [1965] EA 118

5. Jupiter General Insurance Co Ltd v Rajabali Hasham & Sons [1960] EA 592

6. Jani (G.P) Properties Ltd v Dar-es-Salaam City Council [1966] EA 281

Statutes

1. Limitation of Actions Act (cap 22)

2. Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 1,3,14(1)(c)

Advocates

Mr Wamae for the Respondents.

Mr Gatimu for the Appellant.

Ruhara v Kabuga & another

Court of Appeal, at Nyeri October 9, 1986

Kneller, Nyarangi JJA & Gachuhi Ag JA

Civil Appeal No 35 of 1986

(Appeal from the High Court at Nyeri, Patel J)

Arbitration – arbitration award – setting aside – refusal by High Court to set aside award – judgment entered in accordance with award – decree drawn – appellant appealing against refusal to set aside award – whether appeal competent - Civil Procedure Rules order XLV rules 15, 17

The appellant made an application in the High Court under order XLV rule 15(1) of the Civil Procedure Rules to set aside an arbitration award. This application was dismissed, judgment was subsequently given in the terms of the arbitration and a decree was drawn. The appellant appealed against the refusal to set aside the award.

Held:

1. The High Court’s refusal to set aside the arbitration award was an order made under order XLV rule 15(1) of the Civil Procedure Rules from which an appeal is allowed as of right under order XLII rule 1(1)(bb) but only if it is an appeal based on the complaint that the decree was in excess of or not in accordance with the award.

2. The appellant’s appeal was not based on the grounds that the decree was in excess of or not in accordance with the terms of the award and it was incompetent.

Appeal struck out.

Cases

Rimbi, Samwel Mwai v Josphat Mugo Rimbi & another Civil Appeal No 4 of 1985 (unreported)

Statutes

1. Civil Procedure Act (cap 21) sections 3A, 75(1)(h)

2. Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 13, 15, 15(1), 17(2); order XLII rule 1(1)(bb)

3. Limitation of Actions Act (cap 22) section 38

Appellant unrepresented

Kiramburi v Githinji

Court of Appeal, at Nyeri May 23, 1986

Hancox JA

Civil Application No NAI 60 of 1986

(In an intended appeal from the judgment of the High Court at Nyeri,

Patel J)

Appeal – extension of time for filing – application for – whether mandatory for application to include Memorandum of Appeal – delay in obtaining copy of judgment to be appealed from - failure by applicant to obtain Registrar’s certificate of delay – effect of – whether applicant precluded from seeking extension of time – Court of Appeal Rules rule 4; 81(1), (2).

The applicant brought an application under rule 4 of the Court of Appeal Rules for an extension of the time within which to institute an appeal. The respondent’s advocate’s main objection to the application was that because no draft Memorandum of Appeal accompanied the application, the nature of the case, the merits of the intended appeal and whether there would be prejudice to one side or the other if the application was or was not granted were not sufficiently disclosed. The appellate judge perused the records of two lower courts in order to ascertain the subject matter of the case.

Held:

1. As a general rule, an applicant for an extension of time should support his application with a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it in order to enable the court to determine whether or not a refusal of the application would appear to cause injustice. This is a salutary rule with which an advocate is advised to comply as failure to do so may well lead to the dismissal of his application.

2. From the perusal of the records of the case in the two lower courts, this Court was satisfied that the appeal was not entirely without prospects of success.

3. (Obiter) Where there is delay in receiving copies of the proceedings of a case from the Registrar for the purposes of filing an appeal, the failure to obtain a certificate of delay under the proviso to rule 81(1) of the Court of Appeal Rules does not preclude an applicant from seeking an extension of time under rule 4, though his task is made easier if the applicant obtains such certificate.

Application allowed.

Cases

1. Mehrunnissa v Mohamed Parvez (No 2) [1979] KLR 234

2. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) [1972] EA 172

3. Bhatt v Tejwant Singh & another [1962] EA 497

4. Shah v Jamnadas & Co Ltd [1959] EA 838

5. Ribiro v Annah Wanjira Civil Application No NAI 46 of 1982 (unreported)

6. Kuria v Kelen Wahito Civil Application No NAI 19 of 1983 (unreported)

Statutes

1. Magistrates Jurisdiction (Amendment) Act 1981

2. Court of Appeal Rules (cap 9 Sub Leg) rules 4; 81(1), (2)

Advocates

Miss Dar for the Applicant

Mr Ndirangu for the Respondent