Narok County Government v Kibiniko Enterprises Ltd (Civil Appeal 10 of 2019) [2023] KECA 1102 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a Kshs. 12 million deposit requirement imposed on Narok County before a default judgment could be set aside.
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 trial Judge can be faulted for imposing a condition on the order setting aside the default judgment entered against the appellant
Key legal issues
#Whether the High Court could lawfully impose a condition of depositing security as a condition precedent to setting aside a default judgment
The discretion under order 10 must be exercised judiciously and upon reasons; imposing security equivalent to the full claimed amount without any explanation was wrong in principle and an impediment to access to justice, warranting appellate interference.
The court adopted the CMC Holdings test for interference with discretion and the Supreme Court's Westmont Holdings framework on security for costs, which is a relevant analogue. The trial judge gave no explanation for the quantum of the security, which almost exactly matched the claimed amount, suggesting a predetermined view of liability. Such a hurdle stifle and impedes access to justice, so the condition was set aside.
Legal principles established
#- An appellate court will not interfere with a trial judge's discretion unless it was exercised wrongly in principle, perversely, or on wrong considerations
- A condition precedent to setting aside a default judgment must be rationalised by reasons; an unexplained condition, especially one matching the claimed amount, is an erroneous exercise of discretion
- A security-type condition that impedes access to justice without evidential basis will be set aside
Court orders
#- 1.Appeal allowed to the extent that the condition requiring the appellant to deposit Kshs. 12,177,481.00 as security is set aside
- 2.Other grounds of appeal touching on the merits of the case dismissed as they should be canvassed before the trial court
- 3.Each party to meet own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Narok HCCC No 17 of 2014 as consolidated with Narok HCCC No 18 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court (Civil Procedure Act)
Relief refused
#Appeal on grounds going to the merits of the case
Issues belong before the trial court and may return on appeal later
Costs
Each party to meet own costs of the appeal
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.
Once a judgment is set aside, parties are restored to their original positions as prevailed prior to the recording of the judgment.
Such exercise of discretion stifles and impedes the appellant’s right to access justice by subjecting it to such a hardship not backed or rationalized by any evidence.
The upshot of the foregoing is that we hereby allow the appeal to the extent that the condition that the appellant deposit Kshs. 12,177,481.00 as security is hereby set aside.
As such, we direct each party to meet own costs of the appeal.
Issues in the judgment
#Internal inconsistency in figures: the security ordered (Kshs. 12,177,481.00) is stated to exceed the claimed amount (Kshs.12,177,451.30) by Kshs. 29.70, but the quoted figures differ by Kshs. 29.70 only if the figures are read as stated; the arithmetic as printed is correct but the claimed amount differs from the security amount by 29.70 as the court notes - no actual contradiction, minor typographical risk in the claimed amount figure
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.
- Mosonk v Changwony (Environment and Land Case 25 of 2015) [2025] KEELC 5428 (KLR)[2025] KEELC 5428 (KLR)17 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Narok County Government v Kibiniko Enterprises Ltd (Civil Appeal 10 of 2019) [2023] KECA 1102 (KLR)", Case Analysis (2023). Civil Appeal (Narok HCCC No 17 of 2014 as consolidated with Narok HCCC No 18 of 2017 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1102/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.