Francis Kihoro Kibothu v Catherine Kagendo Mbuna [2018] KECA 746 (KLR)
The bottom line
#The Court of Appeal dismissed a landlord's appeal because he hid key facts when getting emergency orders and ignored the rent-payment condition attached to them.
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 finding that the appellant misled the court by concealing that the respondent was represented by an advocate in the BPRT proceedings
- 2.Whether the advocates who acted for the respondent in the BPRT were the same advocates supposed to act for her in the subsequent High Court proceedings
- 3.Whether the Court should interfere with the exercise of the learned Judge's judicial discretion in discharging the exparte orders and striking out the appeal
Key legal issues
#Duty of full and fair disclosure when seeking exparte orders
The appellant, through his advocate, concealed the fact that the respondent was represented by an advocate at the BPRT and created the impression she could not be traced, warranting discharge of the exparte orders obtained on that footing.
The court endorsed the principle from The King v General Commissioners (Exparte Princess Edmond De Pligac) that an applicant for exparte relief must make full and fair disclosure of all material facts, and that the sanction for breach is that the court sets aside any action taken on the faith of the imperfect statement. The appellant's concealment secured substituted service and exparte hearing, an affront to the dignity of the court which warranted discharge of the orders irrespective of the merits.
Failure to comply with conditions attached to exparte orders
The appellant failed to comply with the condition of the exparte orders requiring payment of rent when it fell due, which independently justified setting the orders aside.
The appellant admitted in his affidavit that he was in rent arrears and had locked the common toilet used by other tenants. The court invoked the Shimmers Plaza principle that court orders must be obeyed, obedience being mandatory and not optional, and held that failure to comply with the conditions of the exparte orders justified their discharge and the striking out of the appeal that depended on them.
Standard for appellate interference with judicial discretion
An appellate court may only interfere with the exercise of judicial discretion where the judge misdirected himself and arrived at a wrong decision, or was clearly wrong and occasioned injustice.
Applying Coffee Board of Kenya v Thika Coffee Mills, the Court held that striking out the appeal and discharging the exparte orders were discretionary acts of the learned Judge. Having perused the record, the Court was persuaded the appellant had misled the Judge into granting substituted service and exparte orders, and that no misdirection or injustice warranting interference had been demonstrated.
Legal principles established
#- A party who approaches the court for an exparte order is under an obligation to disclose all material facts within his knowledge, even if adverse to his case, and the penalty for failure is that the court will set aside any action taken on the faith of the imperfect statement.
- An appellate court will not interfere with a judge's exercise of judicial discretion unless the judge misdirected himself in some matter and arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and occasioned injustice.
- Non-disclosure by an exparte applicant disentitles the applicant to relief regardless of whether the relief would have been granted had full disclosure been made.
- Court orders must be obeyed; obedience of court orders is mandatory and not optional.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.A No. 12 of 2006
- Jurisdiction invoked
- First appeal/rider appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory appeal from a High Court ruling); no specific constitutional provision invoked
Relief refused
#Allowance of the appeal and interference with the High Court ruling striking out the appeal and setting aside the exparte orders
The appellant obtained exparte orders through material non-disclosure and failed to comply with the conditions of those orders; the Judge exercised his discretion judiciously
Costs
The appeal is dismissed with costs to the respondent
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.
when an applicant comes to the court to obtain relief on an exparte statement he should make a full and fair disclosure of all the material facts – facts, not law
the court will set aside any action which it has taken on the faith of the imperfect statement.
It matters not upon a point of this nature being taken whether the applicant was entitled to or that the Court would have granted relief sought in any event, that is to say, leaving aside the non-disclosure for it is the affront to the dignity and credulity of the Court that is in point.
Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not.
For the reasons outlined herein above we find no reason to interfere with the learned Judge's discretion. Accordingly, the appeal lacks merit and is hereby dismissed with costs.
Issues in the judgment
#Inconsistent case number for the appealed High Court matter: the judgment's opening refers to H.C.C.A No. 12 of 2016 while the title/heading states H.C.C.A No. 12 of 2006
Tribunal Case No. cited incompletely in the judgment (number omitted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kihoro Kibothu v Catherine Kagendo Mbuna [2018] KECA 746 (KLR)", Case Analysis (2018). Civil Appeal No. 28 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/746/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.