Francis Osike Masaba & another v Henry Khakhubi Wedodo [2019] KECA 417 (KLR)
The bottom line
#Kenya's Court of Appeal refused to revive land appeals dismissed for delay, warning that courts will not rescue parties who are dishonest or slow in prosecuting their cases.
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 judiciously exercised his discretion in dismissing the appellants' application dated 11th December, 2012 to set aside the order dismissing their appeals for want of prosecution
Key legal issues
#Whether the High Court properly exercised its discretion in dismissing the application to set aside the dismissal of the appellants' appeals for want of prosecution
The Judge properly exercised his discretion. The appellants themselves sought the consolidation and adjournment, were given an opportunity to be heard, and their allegations of bias and denial of hearing were not borne out by the record.
The court reiterated that setting aside a ruling is a discretionary matter governed by the justice of the case, and that an appellate court must be slow to interfere with such discretion. The record showed the appellants applied for consolidation and then an adjournment, which was declined; they were heard before the orders were made. Their lack of candour and their readiness disentitled them to discretion, and no prejudice flowed from the lifting of the caution, which did not affect interests or privileges in the suit land.
Whether the lifting of the caution on the suit land caused the appellants prejudice
No prejudice was suffered because the order in the lower court only lifted the caution and did not determine interests and privileges in the land.
The court agreed with the learned Judge that the order in Busia PMCC No. 154 of 2004 merely lifted the caution registered on the suit land and did not touch interests and privileges in it. The appellants therefore stood to suffer no prejudice, and the removal of the caution might even galvanize the parties into resolving the long-standing family dispute.
Legal principles established
#- Setting aside a judgment or ruling is a matter of absolute judicial discretion limited only by the justice of the case, and appellate courts must be slow to interfere with the exercise of that discretion by the trial court.
- The discretion to set aside a judgment or order is not available to assist a party who deliberately seeks to obstruct or delay the course of justice.
- A party who is not candid with the court does not deserve the exercise of the court's discretion in their favour.
Court orders
#- 1.Dismissal of the appeal
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- HCCA No. 10 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Court of Appeal Act/Constitution, not expressly stated in the judgment)
Relief refused
#Setting aside of the High Court ruling dismissing the application to set aside the dismissal of the appellants' appeals
The Judge properly exercised his discretion; the appellants were not candid with the court and suffered no prejudice from the lifting of the caution
Costs
No order as to costs - each party to bear their own costs
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 is trite law that setting aside a judgment or ruling is a matter of absolute judicial discretion limited only by the justice of the case concerned.
A party who is not candid with the court is undeserving of the exercise of the court's discretion in his favour.
Accordingly, we dismiss this appeal with no order as to costs.
Issues in the judgment
#The judgment refers inconsistently to the lower court suit number in different passages, once as Busia PMCC No. 154 of 2004 and later as Busia PMCC No. 154 of 2007.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Osike Masaba & another v Henry Khakhubi Wedodo [2019] KECA 417 (KLR)", Case Analysis (2019). Civil Appeal No. 45 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/417/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.