Price & another v Hilder (Civil Appeal 68 of 1982) [1984] KECA 29 (KLR)
The bottom line
#Kenya's Court of Appeal restored a decades-old default judgment, ruling courts won't easily reopen cases ignored for years—especially when key witnesses have died.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge (Scriven J) properly exercised his discretion in setting aside the ex parte judgment of Mosdell J as to the sum of Shs 189,000 and giving the respondent leave to defend that part of the claim
- 2.Whether the Court of Appeal should interfere with a discretionary decision of a lower court
Key legal issues
#Whether Scriven J properly exercised his discretion in setting aside the default judgment as to Shs 189,000
No. He took into account the Grifiths J disquiet about the extra Shs 96,000, a matter the respondent should have raised immediately after the October 1975 hearing, and misapprehended the facts as to the availability of the plaintiff's son.
The respondent deliberately stayed away, only applying on April 7, 1978 after learning the English garnishee order would bite. The judge himself found the application devoid of true merit, yet gave limited leave to defend. Taking Grifiths J's disquiet into account was an irrelevant consideration; the finding that the plaintiff's son was available in Kenya contradicted the affidavit evidence. Reopening litigation nine years later, after the plaintiff had died, would cause irreparable injustice.
The principles governing appellate interference with a discretionary decision
The court will not interfere merely because it would have decided differently, but will interfere where the decision is clearly wrong due to misdirection, irrelevant considerations, or failure to consider relevant matters.
Both The El Amria (Brandon LJ), followed in Kenya, and Mbogo v Shah (Sir Charles Newbold P and De Lestang VP) state the applicable test. Applying it, the trial judge's decision was clearly wrong: he was mesmerized by Grifiths J's observations, misdirected himself on essential matters, and acted on matters on which he should not have acted.
Legal principles established
#- A superior court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong - because it has misdirected itself, acted on matters it should not have acted on, or failed to consider matters it should have considered, arriving at a wrong conclusion.
- The test for setting aside a judgment is whether, in light of all facts and circumstances and the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary upon terms.
- A judge setting aside an ex parte judgment must exercise discretion on accepted principles; doing so on irrelevant considerations and a misapprehension of the facts renders the decision plainly wrong.
Court orders
#- 1.Appeal allowed
- 2.Order of Scriven J dated September 27, 1979, insofar as it set aside Mosdell J's ex parte judgment as to Shs 189,000, set aside
- 3.Application of April 7, 1978 dismissed in toto
- 4.Respondent ordered to pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Traced the history of the default judgment of Mosdell J for Shs 414,500, its registration in England, Scriven J's order setting it aside as to Shs 189,000, and held that the trial judge's discretion was exercised on wrong principles: he took into account Grifiths J's disquiet about the cattle credit of Shs 96,000, misapprehended the facts about the availability of the plaintiff's son, and ignored the injustice of reopening litigation nine years later after the plaintiff's death. Applying The El Amria and Mbogo v Shah, the decision was plainly wrong and the appeal should be allowed.
in my opinion this is a case where we can and should say that the judge’s discretion was not properly exercised in accordance with the accepted principlesp. 3
Wrote the judgment
Concurring judgment agreeing the appeal should be allowed in the terms proposed by Hancox JA. Held the judge wrongly exercised his discretion by taking into account Grifiths J's disquiet, and that the respondent's laches in waiting nearly nine years, with the plaintiff now dead, made it impossible to do justice.
The respondent was guilty of laches and it was dificult to say that justice could be done to the parties after such a long time, when in fact one of them was now dead.p. 4
Wrote the judgment
Concurring judgment. Restated the settled principles on appellate interference with discretionary decisions from The El Amria and Mbogo v Shah (De Lestang VP's formulation), held the trial judge misdirected himself on essential matters, acted on matters he should not have considered, and that his decision was clearly wrong.
The trial judge’s decision is clearly wrong. I too would allow the appeal to the extent indicated by Hancox JA.p. 5
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal over appeals from the High Court (not expressly stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would therefore allow the appeal, set aside the order of Scriven J dated September 27, 1979, insofar as it set aside Mosdell J’s ex parte judgment as to Shs 189,000 and dismiss the application of April 7, 1978 in toto. I would order the respondent to pay the costs of the appeal.
The trial judge’s decision is clearly wrong. I too would allow the appeal to the extent indicated by Hancox JA. I concur with the order proposed on costs.
I find it hard to escape the conclusion that the application is devoid of true merit but that rather it has all the characteristics of the last move by a debtor who has hitherto scorned the courts of Kenya for redress, but who now has no other hope but (to) fiing himself on the mercy of the very court he has so far eschewed.
this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
I can conceive of no greater injustice than that the plaintifi’s representatives should have to come and defend a counterclaim, or even to prove the relevant part of the claim, over nine years after the judgment was entered and after the principal witness on the plaintifi’s side had died.
It stands out a mile that the Defendant was deliberately getting out of the country in the hope of avoiding payment.
Issues in the judgment
#The judgment records The El Amria with inconsistent citations - Hancox JA gives [1982] 2 Lloyds Reports 119, Chesoni Ag JA gives [1982] Lloyd's Reports 119, and Nyarangi Ag JA gives [1981] 2 Lloyds Law Reports 119.
The judgment quotes Mbogo v Shah at page 95 in one passage and at page 195 in another for what appears to be the same test.
The case number of the appeal is not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wangui v Wangui (Environment and Land Case 1403 of 2016) [2025] KEELC 5971 (KLR)[2025] KEELC 5971 (KLR)2 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Price & another v Hilder (Civil Appeal 68 of 1982) [1984] KECA 29 (KLR)", Case Analysis (1984). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/29/eng@1984-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.