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Court of AppealAllowedCivil Appeal (Kisumu) - appeal from HCC No. 64 of 2000· [2002] KECA 295 (KLR)

Trust Bank Ltd v Amalo Company Ltd

Court of Appeal of Kenya
18 October 2002
Philip Kiptoo TunoiP.K TunoiSBS.E.O BosireEOE. Owuor
1,260 words in judgment
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The bottom line

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Kenya's Court of Appeal held that late-filed documents must be considered and disputes decided on their merits, not lost to technical timing errors.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against an order of Wambilyangah, J. in HCC No. 64 of 2000 made on 17th April, 2000. The respondent, Amalo Company Ltd, had sued Trust Bank Ltd over money borrowed and obtained a temporary injunction restraining the Bank from exercising its statutory power of sale over Kisumu Municipality/7/158. At the inter partes hearing the Bank's replying affidavit and grounds of opposition, filed out of time and unserved, were expunged on a preliminary objection, and the judge granted the injunction on the basis that the application was unresisted. The Court of Appeal allowed the appeal. It held that disputes should, so far as possible, be decided on their merits, citing Essanji v Solanki, and endorsed the principle in Central Bank of Kenya v Uhuru Highway Development Ltd that documents filed out of time are not necessarily invalid and must be considered unless there is a reason other than mere lateness to exclude them. The Bank had explained the delay, the documents were on record, and no prejudice to the respondent was shown. Even if the application had proceeded ex parte, the judge was bound to assess it on its merits under the usual injunction principles. His discretion was therefore exercised injudiciously. The appeal was allowed, the orders of 17th April, 2000 were set aside, the respondent's application was remitted to be heard inter partes by another judge, and the Court made no orders as to costs.

Key legal issues

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01

Whether a court may expunge a party's replying affidavit and grounds of opposition filed out of time and unserved, and treat the application as unresisted

Holding

No. The court erred in expunging the documents; the appellant had a right to be heard on documents already on record, and mere lateness did not justify excluding them or granting orders as on an unresisted application.

Reasoning

The Court adopted the principle from Essanji v Solanki that disputes should be decided on their merits, and endorsed Bosire JA's earlier statement in Central Bank of Kenya v Uhuru Highway Development Ltd that documents filed out of time are not necessarily invalid. Order 9(1) of the Civil Procedure Rules reflects the policy that a litigant may appear, file a defence and be heard before judgment. The judge had the documents before him on the hearing date; the only defect was late service, for which an explanation was offered and no prejudice shown. Exercising discretion on that basis was injudicious.

p. 3
02

Whether an ex parte hearing relieves a court of the duty to assess the application on its merits

Holding

No. Even if the application proceeded ex parte, the judge was bound to consider it on its merits under the usual principles governing injunctions.

Reasoning

The Court held that expunging the documents did not permit the judge to grant the injunction 'without much ado'. The grant of a temporary injunction, whether contested or not, must rest on the established principles - prima facie case, irreparable harm and the balance of convenience - assessed on the material properly before the court. By treating the application as unresisted and granting orders mechanically, the judge exercised his discretion injudiciously, warranting appellate interference.

p. 3

Legal principles established

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  • Documents filed out of time in response to an application are not necessarily invalid; a court is obliged to consider them unless for a reason other than mere lateness it considers it undesirable to do so.
  • Disputes should, where possible, be heard and decided on their merits, and a litigant has the right to be heard on documents properly on record notwithstanding procedural irregularity in service or timing.
  • Even where an application proceeds ex parte, the court remains under a duty to consider it on its merits applying the usual principles governing the grant of injunctions.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders made by the Superior Court on 17th April, 2000 set aside
  3. 3.The application filed on 15th March, 2000 by the respondent to be heard inter partes in the superior court by another judge
  4. 4.No orders as to costs
On appeal from
High Court of Kenya, Kisumu
HCC No. 64 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (superior court) order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Trust Bank Ltd v Amalo Company Ltd", Case Analysis (2002). Civil Appeal (Kisumu) - appeal from HCC No. 64 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/295/eng@2002-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.