Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedAppeal from Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013 (appeal filed 22nd June 2013)· [2018] KEELC 4163 (KLR)

Health Devices (K) Ltd v Bawan Limited & another [2018] KEELC 4163 (KLR)

High Court of Kenya at Mombasa
22 February 2018
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The High Court dismissed a tenant's appeal, confirming that Kenyan magistrates have wide discretion to manage cases flexibly and condition relief on paying what is owed.

What this practically means

#

Executive summary

#
This is a first appeal from a ruling of Resident Magistrate Hon. Ms. E. Onzere in Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013. The Appellant, Health Devices (K) Limited, had obtained interim restraining orders against distress and interference with leased premises at Olemanana House. On 26th June 2013 the trial magistrate conditionally allowed the Appellant's application, requiring deposit in court of auctioneers' charges of Kshs.192,335 and storage charges of Kshs.190,000 within 21 days, failing which the order would lapse. The Appellant appealed on nine grounds, arguing among other things that the magistrate allowed the Respondent's Advocate to give evidence from the bar without a replying affidavit, wrongly directed that two applications be heard together and disposed of by written submissions, and exhibited bias. The Respondents contended that the order appealed against was not in the record and that the appeal lacked merit. The court overruled the preliminary point, confirming the order was in the record at pages 116-117. Applying Mbogo v Shah and Karature Networks v Daly & Figgis Advocates, the court held the trial magistrate had exercised her discretion properly: the Respondent's Advocate addressed the court with leave, no objection was raised by the Appellant's counsel, and the directions on written submissions and joint hearing gave effect to the overriding objective under Sections 1A and 1B of the Civil Procedure Act. The conditional deposit order was justified by the Appellant's rent default, which occasioned the distress, and no evidence of bias or extortion was found. All nine grounds failed and the appeal was dismissed with costs to the Respondents on 22nd February 2018.

Key legal issues

#
01

Whether oral submissions by the Respondent's Advocate without a formal replying affidavit or grounds of opposition vitiated the ruling

Holding

No error; the Advocate addressed the court with leave of the court, and the Appellant's counsel raised no objection

Reasoning

Order 51 Rule 14 permits a respondent to oppose by replying affidavit or grounds of opposition, but the trial magistrate had granted the Respondent seven days to file a response, and the Advocate addressed the court with leave. The court's discretion requires hearing both sides, and no objection was taken by the Appellant's counsel who was present.

p. 4
02

Whether the direction that the two applications be heard together and disposed of by written submissions was erroneous

Holding

Not erroneous; it gave effect to the overriding objective under Sections 1A and 1B of the Civil Procedure Act

Reasoning

Order 51 Rule 16 allows the court to allow written submissions. Sections 1A and 1B require just, expeditious and proportionate resolution and efficient use of judicial resources. The Respondents' application of 24.6.2013 touched on the suit premises and rent arrears, so hearing the applications together was within the magistrate's case-management discretion.

p. 4
03

Whether the conditional order requiring deposit of auctioneers' and storage charges was wrong

Holding

It was proper; the Appellant defaulted on rent, occasioning the distress, and the charges had to be addressed before release of the goods

Reasoning

The Appellant was in rent arrears, as shown by correspondence between the parties' Advocates. The distress was lawfully occasioned by the Appellant's own default, and questions of auctioneers' charges and storage charges had to be dealt with before the goods could be released. The maxim that he who seeks equity must do equity applied.

p. 5
04

Whether the trial magistrate was biased or lacked impartiality

Holding

There was nothing to show bias or lack of impartiality

Reasoning

The court reviewed the subordinate court proceedings culminating in the order of 26.6.2013 and found no misdirection. The Appellant's allegations of bias and extortion were unsupported; there was no affidavit evidence of extortion, and the Appellant had admitted default in rent.

p. 6

Legal principles established

#
  • An appellate court will not interfere with the exercise of a trial judge's discretion unless it is shown the judge misdirected himself or was clearly wrong resulting in misjustice
  • A court may, in furtherance of the overriding objective, direct that applications be heard together and disposed of by written submissions
  • An Advocate may address the court with leave of the court even where a formal replying affidavit has not been filed, and a court should hear and consider the case for both parties

Court orders

#
  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The preliminary point that the order dated 26th June 2013 is not in the record of appeal is overruled

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 14
  • Civil Procedure RulesOrder 51 Rule 16
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B

Cases cited (12)

  • British American Investments Co (K) Ltd –vs- Njomatha Investments Ltd and another
    HC & Admiralty Division Civil Suit No. 57 of 2011
  • Standard Chartered Financial Services & A. D. Gregory And Manchester Outfitters (Suiting Divisions) Ltd (now known as King Woolen Mills Ltd) & 2 Others
    Nairobi Court of Appeal Civil Appeal No. 224 of 2006
  • Joseph D. Halake –vs- Yunis Malik
    HCCC No 230 of 2004
  • Rev. Jesse Kamau & Others –vs- the A.G.
    2013 eKLR
  • Galaxy Paints Co. Ltd –vs- Falcon Guards Ltd
    (2000) EA 885
  • Hinter Trading Co. Ltd –vs- Elf Oil (K) Ltd
    Appl No. 6 of 2010
  • Ndegwa Kamau t/a Sideview Garage –vs- Fredrick Tsika Kalumbo
    HCCA No. 5 of 2013
  • Kyuma –vs- Kyema
    (1988) eKLR 185
  • Municipal Council of Kitale –vs- Nathan Fedha
    Civil Appeal No. 70 of 1983
  • Boy Juma Boy Rashid –vs- County Returning Officer, Kwale County And 4 Others
    null
  • Mbogo And Another –vs- Shah
    EALR 1968
  • Karature Networks Limited –vs- Daly & Figgis Advocates
    Civil Application No 293 of 2009
On appeal from
Mombasa Senior Principal Magistrate's Court (Resident Magistrate Hon. Ms. E. Onzere)
Civil Suit No. 1057 of 2013
Jurisdiction invoked
First appellate jurisdiction over appeals from the Resident Magistrate's court (ruling dated 21st, 24th and 28th June 2013 and order of 8th July 2013)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Health Devices (K) Ltd v Bawan Limited & another [2018] KEELC 4163 (KLR)", Case Analysis (2018). Appeal from Mombasa Senior Principal Magistrate's Court Civil Suit No. 1057 of 2013 (appeal filed 22nd June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4163/eng@2018-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.