Merry Beach Limited v Barclays Bank of Kenya Limited [2019] KECA 540 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a party who explains why it can't produce ordered documents still deserves a hearing, and bias claims need real evidence.
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 was biased in the exercise of his discretion in declining to grant the respondent's application of 14th March 2018 and allowing the appellant's application dated 23rd April 2018
- 2.whether the learned judge varied, set aside or reviewed the orders in Civil Appeal No. 2 of 2017 delivered on 14th December 2017, or whether the learned judge rightly concluded that the respondent had complied with the orders of this Court
Key legal issues
#Whether the trial judge was biased
Bias was not established under the objective reasonable-apprehension test; the appellant identified no incident, utterance or action demonstrating bias, and raising allegations after the decision is an afterthought.
The court applied the objective test from Attorney-General v Anyang' Nyong'o: whether a reasonable, fair-minded and informed member of the public would perceive that the judge would not act impartially. The appellant did not attest to any incident of bias or identify any action or utterance by the trial judge. Allegations raised after the decision was rendered are to be regarded with circumspection and were an afterthought.
Whether the learned judge varied, set aside or reviewed the Court of Appeal's orders
He did not; acknowledging the respondent's explanation for non-production of some cheques did not amount to reviewing the orders. Providing some cheques plus an explanation constituted sufficient compliance.
The respondent provided some documents and cheques within the time frame and filed an Affidavit of Compliance explaining why not all cheques could be produced. Following Yatin Vinubhai Kotak and Eastern Radio Service v Tiny Tots, non-compliance not attributable to wilful disregard should not disentitle a party. The question of whether cheques were destroyed prematurely was premature at that stage and properly a trial matter.
Whether the trial judge properly exercised his discretion in allowing amendment of the defence and counterclaim and declining summary judgment
Yes; the appellant gave no reason showing the exercise of discretion was flawed, and the amended pleadings did not introduce new issues.
Relying on Mbogo v Shah and Magunga General Stores v Pepco Distributors, an appellate court will not interfere with a trial judge's discretion unless it was wrong in principle or on the facts. The judge interrogated the draft amended defence and found no new issues introduced; it was not enough for the appellant to allege improper exercise without specifying the flaw.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself in some matter and arrived at a wrong conclusion, or it is manifest from the case as a whole that the judge was clearly wrong resulting in injustice.
- The test for bias is the objective test of reasonable apprehension: whether a reasonable, fair-minded and informed member of the public would conclude that the judge would not apply his mind to the case impartially.
- A party cannot be compelled to supply documents it no longer has; failure to provide documentary evidence is not a ground for denying a party a hearing, and consequences for non-disclosure are to be visited after the hearing.
- Non-compliance with a court order for discovery or production ought not to disentitle a party to its rights unless the failure was wilful or contumacious; a demonstrated absence of intention to flout the order due to extraneous circumstances excuses the default.
- Where triable issues are raised on an application for summary judgment, the court must grant leave to defend unconditionally.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
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 Malindi
- Malindi H.C.C.C. No. 5 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (specific enabling provision not cited in the judgment).
Relief refused
#Declaration that the respondent's defence stood struck out for non-compliance with the Court of Appeal orders of 14th December 2017
Providing some cheques together with an explanation for the others amounted to sufficient compliance; allegations of destruction of documents could be interrogated at trial
Summary judgment for Kshs. 27,331,646 and Euros 60,000 with interest
The learned judge's exercise of discretion could not be faulted; triable issues and the amended pleadings superseded striking out
Striking out the amended Defence and Counterclaim
The amendment did not introduce new issues; no basis shown to interfere with the trial judge's discretion
Costs
Appeal 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.
In summary, we find that the appeal is unmerited, and is accordingly dismissed with costs to the respondent. It is so ordered.
The objective test of 'reasonable apprehension of bias' is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public that a Judge did not (will not) apply his mind to the case impartially
A party cannot be compelled to supply documents which it says it no longer has. Failure to avail documents is not a ground for denying a party an opportunity to be heard.
A litigant who has failed to comply with an order for discovery should not be precluded from pursuing his claim and setting up his defence unless his failure to comply was due to a wilful disregard of the order of the court.
It is an accepted principle that a Court of Appeal will not interfere with the judge's exercise of discretion unless it is satisfied that the trial judge misdirected himself in some matter and as a result arrived at a wrong conclusion or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion which has resulted in a misjustice.
Where there are triable issues raised in an application for summary judgment, there is no room for discretion and the court must grant leave to defend unconditionality
Issues in the judgment
#The judgment inconsistently refers to the prior Court of Appeal decision as 'Civil Appeal No. 5 of 2014' in the opening paragraph and as 'Civil Appeal No. 2 of 2017' elsewhere, and the dates of the two High Court applications/rulings appear out of chronological sequence (application filed 18th November 2017 but ruling dated 16th March, 2016, described after a ruling dated 11th December, 2014).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Merry Beach Limited v Barclays Bank of Kenya Limited [2019] KECA 540 (KLR)", Case Analysis (2019). Civil Appeal No. 163 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/540/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.