Kenya Commercial Bank Limited v Joshua Aggrey Oburi & another [2001] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled a judgment entered without legal authority, confirming courts must undo irregular judgments as a matter of justice.
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 Deputy Registrar had power to enter interlocutory judgment on a plaint seeking only a declaration and an injunction
- 2.Whether the learned judge erred in striking out and dismissing the bank's application to set aside the judgment for failure to state grounds in the chamber summons itself
- 3.Whether the second application to set aside the judgment was res judicata given that the first application was dismissed without a hearing on the merits
- 4.Whether the third application dated 26th November, 1998 was superfluous
Key legal issues
#Power to enter interlocutory judgment on declaratory and injunctive reliefs
There is no provision in Order IXA of the Civil Procedure Rules for entry of interlocutory judgment where the plaint seeks a declaration and an injunction; the plaintiff should have set the suit down for formal proof without notice.
Order IXA rule 5 applies only to claims for pecuniary damages or detention of goods, and rule 8 merely directs the plaintiff to set the suit down for hearing under Order IXB where no other provision applies. Since the plaint here sought only a declaration and an injunction, the Deputy Registrar acted without power in entering judgment 'as prayed', and the resulting decree was irregularly obtained.
Curability of procedural defects in applications to set aside judgment
The judge erred in strictly applying Order 50 rule 7 to strike out and dismiss the application; following Castellino v Rodrigues, the defect was curable by amendment or the annexed affidavit's grounds could have been considered.
The court relied on Castellino v Rodrigues, which held that a reference in a document to an annexure incorporates its contents, and that irregularities occasioning no prejudice are curable. It also noted the five-judge decision in Echaria granting leave to amend a defective notice of motion. The judge should have set aside the irregularly obtained judgment ex debito justitiae rather than confirm it.
Res judicata where the earlier application was dismissed without a hearing on the merits
The second application to set aside the judgment was not res judicata because the first application had been dismissed without being heard on the merits.
Relying on Ngoni-Matengo Co-operative Marketing Union Ltd v Osman and the passage from Bhogal v Kassam, the court reasoned that where the earlier proceeding was incompetent or not heard on the merits, there is no res capable of becoming judicata. The judge should, if anything, have ordered striking out rather than dismissal. Filing the second appeal was therefore not unnecessary.
Whether the third application was superfluous
A party is entitled to use all available procedural remedies rather than take a chance on appeal alone, so the application of 26th November, 1998 was not superfluous.
The court rejected the first respondent's submission that the third application was unnecessary, holding that a litigant may pursue cumulative procedural remedies ex abundanti cautela. The appeal against the ruling that that application was res judicata therefore also succeeded.
Legal principles established
#- A Deputy Registrar has no power to enter interlocutory judgment in a suit where the reliefs sought are a declaration and an injunction rather than pecuniary damages or detention of goods; such a judgment must be set aside ex debito justitiae.
- A defect in an application for failure to state grounds in the chamber summons itself, where the grounds appear in an annexed affidavit, is an irregularity curable by amendment and does not justify striking out with dismissal.
- The doctrine of res judicata does not apply where the earlier dismissal was not a determination on the merits.
Court orders
#- 1.Civil Appeal No. 199 of 1999 allowed; the order striking out and dismissing the second defendant's application of 5th September, 1997 set aside
- 2.The interlocutory judgment entered on 13th April, 1997 set aside
- 3.The second defendant granted leave to enter appearance within ten days and to file its defence within 15 days thereafter
- 4.Civil Appeals Nos. 200 and 201 of 1999 allowed with costs, reiterating the orders made in Civil Appeal No. 199 of 1999
- 5.The costs taxed and paid over to the plaintiff by the second defendant ordered to be refunded, with interest at court rates from the date of payment until the date of refund
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 133 of 1997
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (orders dated 3rd February, 14th May and 8th December, 1998)
- Consolidated with
- Civil Appeal No. 200 of 1999, Civil Appeal No. 201 of 1999
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.
It can be seen straight away that there is no provision for entry of interlocutory judgment in regard to the reliefs sought by the plaintiff which reliefs we have set out above.
He ought to have set aside that judgment ex debito justiciae.
Of course rules are made to be observed, but irregularities can be cured by amendment when they have occasioned no prejudice.
The learned judge had not heard the first application on merits and when such was the case the doctrine of res judicata does not apply even if there is a dismissal ordered.
The upshot of all this is that all the three consolidated appeals are allowed with costs and we reiterate the orders made in regard to Civil Appeal No. 199 of 1999. The costs which were taxed and paid over to the plaintiff by the second defendant are hereby ordered to be refunded.
Issues in the judgment
#The judgment refers to 'Civil Appeal No. 199 of 1993' in the dispositive paragraph, an apparent typographical error for Civil Appeal No. 199 of 1997/1999 as used elsewhere.
The judgment states the summons was served on the appellant on 29th March, 1997, yet the suit was filed on 27th May, 1997 - the dates appear internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Joshua Aggrey Oburi & another [2001] KECA 303 (KLR)", Case Analysis (2001). Civil Appeal No. 199 of 1999 (as consolidated with Civil Appeals Nos. 200 and 201 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/303/eng@2001-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.