Delphis Bank Limited (Now Oriental Commercial Bank Limited v Channan Singh Chatthe & 5 others [2014] KECA 817 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defendant only has to present evidence first in a civil trial if they have admitted the plaintiff's claims.
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 ordering the appellant to adduce evidence first when the application was made orally and without notice
- 2.Whether the Judge erred in finding that the defendant bore a larger burden of proof than the plaintiffs
- 3.Whether the Judge misdirected himself by proceeding with the trial after granting leave to appeal against his ruling
- 4.Whether the Judge erred in refusing the appellant an adjournment and a stay of proceedings
- 5.Whether the Court of Appeal should interfere with the exercise of the trial judge's discretion
Key legal issues
#Who has the right to begin in a civil trial under Order 17 Civil Procedure Rules
The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff; only such an admission shifts the burden and justifies ordering the defendant to begin
Order 17(1) was read together with the amended Order 18 and Mulla's commentary on the equivalent Indian provision, which ties the right to begin to the rules of evidence and burden of proof. The Court examined the pleadings and found the appellant had denied the material allegations of fraud in the plaint and admitted only formal descriptive paragraphs. Therefore the defendant had not admitted the facts alleged, the burden remained on the plaintiffs, and the order that the defendant begin was an unwarranted reversal of the ordinary course of civil proceedings.
Circumstances in which the Court of Appeal will interfere with a trial judge's exercise of discretion
The appellate court interferes only where the discretion was exercised on wrong principles or the decision is clearly wrong; here the judge misdirected himself in ordering the defendant to begin and in refusing a stay after granting leave to appeal
Restating the Mbogo v Shah principle, the Court held the judge exercised his discretion wrongly twice: first by ordering the appellant to begin where no admission of the plaintiffs' case was demonstrated and the oral application without notice was an ambush; and second by granting leave to appeal yet refusing a stay of proceedings, depriving the appellant of the benefit of the leave. The Court was therefore entitled to interfere.
Procedural regularity of an oral application without notice that the defendant begin
An oral application, made without any prior notice, for the defendant to be ordered to begin was an ambush on counsel and should not have been granted
The application by counsel for the third defendant to the counter-claim was made orally when the suit was called out for hearing, with no prior notice, and was grounded only on two of the sixteen agreed issues. Counsel for the appellant objected that she had been ambushed and that the application should have been made by motion. The Court accepted that the application lacked notice and was clearly an ambush, which contributed to the conclusion that the judge's discretion was exercised in error.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial judge unless the decision is clearly wrong - misdirected, based on wrong matters, or failing to consider relevant matters
- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff; a defendant's denial of allegations and filing of a counter-claim does not of itself shift the burden of proof
- Where the party on whom the burden of proof lies has not admitted any part of the claimant's case, it is an error to reverse the ordinary course of trial by ordering that party to begin
Court orders
#- 1.Appeal allowed
- 2.That part of the proceedings of 4th May 2005 ordering the appellant to adduce evidence first set aside
- 3.Costs of the appeal awarded to the appellant
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
- Kisumu HCCC No. 164 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory decision of the High Court (leave to appeal granted by the trial judge)
- Consolidated with
- Civil Appeal No. 180 of 2008, Civil Appeal No. 273 of 2008
Relief refused
#Transfer of the suit to Nairobi
Counsel for the appellant did not press the prayer, which the Court considered a correct decision
Costs
Costs of the appeal awarded to the appellant
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.
Rule 1 therefore requires that for there to be a change in the normal position that the plaintiff has the right to begin it has to be shown that the defendant has admitted the facts alleged by the plaintiff.
I think it is well settled that 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
We allow the appeal and set aside that part of proceedings that took place on 4 th May, 205 by which it was ordered that the appellant adduce evidence first. We award costs of the appeal to the appellant.
Issues in the judgment
#Typographical error in the disposition: the year of the impugned proceedings is given as 205 rather than 2005
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.
- Kiptogom Arap Lagat & another v Rael Jepkorir Lagat & 3 others [2018] KEELC 1867 (KLR)[2018] KEELC 1867 (KLR)27 Jul 2018
Cite this brief
#Cite this brief
Caselaw, "Delphis Bank Limited (Now Oriental Commercial Bank Limited v Channan Singh Chatthe & 5 others [2014] KECA 817 (KLR)", Case Analysis (2014). Civil Appeal No. 179 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/817/eng@2014-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.