JOSEPH NJUGUNA MUNIU vs MEDICINO GIOVANNI [1998] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a lawyer's clerical diary mistake is a valid excuse to reopen a default judgment, and that time-extension orders can be challenged at trial.
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 learned Judge erred in refusing to set aside the exparte judgment where the appellant's advocate failed to attend the hearing due to a clerical mistake in noting the hearing date
- 2.Whether an exparte order extending time under s.27 of the Limitation of Actions Act, once served on the defendant, becomes final or remains provisional and challengeable at the trial
- 3.Whether the Court of Appeal could interfere with the Judge's exercise of discretion
Key legal issues
#Finality of exparte orders under s.27 of the Limitation of Actions Act
An exparte order extending time under s.27 is provisional only; the defendant must challenge it at the trial, and the trial judge rules finally on whether the plaintiff has overcome the time bar
Following Lord Denning MR in Cozens v North Devon Hospital Management Committee, the Court held that the Limitation Act procedure requiring an ex parte application is exceptional and excludes the general rule that ex parte orders may be discharged interlocutorily. The trial judge is not bound by the provisional view of the judge who granted leave in chambers.
Setting aside exparte judgment for advocate's failure to attend
A mistake in the advocate's office whereby a hearing date was not diarised is a good and excusable explanation; the judge erred in requiring an affidavit from the clerical officer responsible
The Court accepted that busy advocates depend on clerical staff for routine matters, and once the judge accepted that somebody had forgotten to enter the date, it was immaterial who that person was or why. There was no evidence of recklessness, indifference or untruth, so the refusal to set aside the judgment was a clear error causing misjustice.
Interference with judicial discretion on appeal
Although the Court would not normally disturb a discretionary decision, here the judge was clearly wrong and misjustice resulted, justifying interference
Applying Mbogo v Shah, the Court reiterated the restraint on appellate interference with discretion, but found the judge wrong in holding that no justifiable and excusable reason had been offered, and in treating the s.27 exparte order as final, thereby depriving the appellant of the opportunity to plead limitation at trial.
Scope of Order XXI rule 22 Civil Procedure Rules
Order XXI rule 22 has no application where the executing court is the same as the court which passed the decree; advocates were cautioned against misreading the rule
The Court remarked that the rule applies only where a decree has been sent for execution to another court, in which case the executing court may grant a temporary stay. Where the same court passed and would execute the decree, a stay may only be granted in the exercise of inherent powers.
Legal principles established
#- An exparte order extending time under s.27 of the Limitation of Actions Act is merely provisional and can only be challenged at the trial of the suit, not at an interlocutory stage
- Order XXI rule 22 of the Civil Procedure Rules applies only where the decree has been sent for execution to a court other than the court which passed it
- A court may stay a decree it has passed in exercise of its inherent powers where circumstances warrant
- An appellate court will not interfere with a judge's discretion unless the judge misdirected himself or was clearly wrong resulting in misjustice
- A clerical mistake by an advocate's office in failing to diarise a hearing date, without more, is an excusable mistake justifying setting aside an exparte judgment
Court orders
#- 1.Appeal allowed
- 2.Order of the superior court dated 19th June 1996 set aside
- 3.Exparte judgment and decree dated 29th November 1995 and all consequential orders conditionally set aside
- 4.Suit to be heard on merits only in respect of the issue of limitation and extension of time and those issues of fact of which the onus is on the appellant
- 5.Appellant granted costs of the appeal
- 6.Appellant to pay the respondent's costs of the chamber summons of 15th December 1995 as ordered by the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No. 477 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Rules, r.96 invoked for substitution of the deceased respondent)
Relief refused
#Full reinstatement of the defence on all issues
The suit was restored only for trial of the limitation issue and issues of fact on which the onus lay on the appellant
Costs
Appellant granted costs of the appeal; appellant to pay the respondent's costs of the chamber summons of 15th December 1995 as ordered by the superior court
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.
The upshot is that we hereby allow the appeal and set aside the order made on 19th June, 1996 by the superior court.
We conditionally set aside the exparte judgment and decree dated 29th November, 1995 and all orders consequential thereto and order that the suit be heard on merits only in respect of the issue of limitation and extension of time
We grant to the appellant the costs of this appeal but the appellant shall pay the respondent's costs of the chamber summons of 15th December, 1995, as ordered by the superior court.
such an order obtained exparte is merely provisional and there is nothing final about it. Defendant served with that order can only have it set aside at the trial of the suit.
The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, 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.
unless and until the court has pronounced judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.
Issues in the judgment
#The judgment inconsistently refers to the third-party vehicle as No. KYB 425 in the defence and No. KYB 405 in the judge's ruling and the Court's own discussion
The judgment records the respondent's death on 21st July 1997 as occurring 'during the pendency of this appeal' but the appeal is from a ruling of 19th June 1996 in an appeal filed in 1997; the substitution is recorded without the formal title of the substituted party appearing in the cause title
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.
- Benjamin Kirwa Kemboi v William Birgen & another [2019] KEELC 1091 (KLR)[2019] KEELC 1091 (KLR)8 Oct 2019followed
Cite this brief
#Cite this brief
Caselaw, "JOSEPH NJUGUNA MUNIU vs MEDICINO GIOVANNI [1998] KECA 251 (KLR)", Case Analysis (1998). Civil Appeal No. 216 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/251/eng@1998-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.