BARCLAYS BANK OF KENYA LIMITED vs COME TO AFRICA SAFARIS LIMITED [1998] KECA 95 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judge should accept a lawyer's unchallenged explanation for missing a hearing, and that a criminal acquittal proves nothing in a civil case.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The applicant had an arguable appeal because the judge ought to have accepted counsel's unchallenged explanation for non-attendance
The court confined itself to the single threshold question under rule 5(2)(b): whether the appeal was arguable. It found the judge below erred in rejecting an explanation for counsel's non-attendance that was not disputed by the respondent, and on that basis the appeal was arguable, justifying the relief sought.
Effect of criminal acquittal on a civil claim
Acquittal has little bearing on a civil suit; only a conviction is prima facie evidence of liability
The respondent argued that her client's acquittal on criminal charges arising from the same facts assisted her position. The court rejected this, holding that acquittal does not establish civil liability, whereas a conviction would be prima facie evidence of it. The point was therefore of no assistance to the respondent.
Whether the appeal would be rendered nugatory
The nugatory question was a moot point given the prior injunction had lapsed with the dismissal of the claim
The court noted that an injunction had earlier been granted to the applicant in the superior court, but that order was no longer in force since the plaintiff's claim stood dismissed. In those circumstances the nugatory-ness inquiry did not arise for determination, and the court granted only the first prayer.
Legal principles established
#- An acquittal in criminal proceedings is not evidence of liability in a civil suit; only a conviction is prima facie evidence of civil liability
- An unchallenged explanation by counsel for non-attendance at a hearing ought to be accepted when considering whether to set aside an ex-parte dismissal
Court orders
#- 1.The application is allowed in terms as prayed in the first prayer before the court
- 2.Costs of the application shall be costs in the appeal
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (inherent in the application for stay/injunctive relief pending appeal; the judgment does not expressly state the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BARCLAYS BANK OF KENYA LIMITED vs COME TO AFRICA SAFARIS LIMITED [1998] KECA 95 (KLR)", Case Analysis (1998). Civil Application No. NAI.210 of 1998 (84/98UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/95/eng@1998-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.