[1984] KECA 114 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Hancox, J .A and Chesoni and Nyarrangi, Ag. JJ.A)

CIVIL APPEAL NO 68 OF 1982

BETWEEN

MARK WILLIAM TREVOR PRICE & CAROLINE ELSA ANNE STURDY…………………………………APPELLANTS

Trustees of the Estate of TROVOR PRICE deceased

AND

JOHN GREAVES HILDER…………………………….………………..............................................................RESPONDENT

(Appeal from the order of the High Court of Kenya at Nairobi (Scriven, J)

dated 27th

September, 1979)

in

Civil Case No 7 of 1970)

JUDGMENT OF CHESONI AG J A

I have had the advantage of reading the judgment of Hancox, J.A in draft and I agree that this appeal should be allowed in the terms he has proposed.

The judge (Scriven, J) wrongly exercised his discretion when he took into account a matter he ought to not to have considered namely Griffiths J’s disquiet whether the plaintiff had got almost £5,000 more than what was due to him. In my view the judge could not, too, have exercised the discretion in favour of the respondent who had waited for nearly nine years to seek the court’s order setting aside the exparte judgment. The respondent was guilty of latches and it was difficult to say that justice could be done to the parties after such a long time, when in fact one of them was now dead. The principles enunciated in the English case of EL AMRIA (1981) Lloye’s Reports 119 at page 123 about exercise of discretion by a judge were applied to Kenya in the case of CARL RONMING v SOCIETE NAVALE CHARGEURS DELMAS VIELJEUX & ANOTHER – AG CA 16/82. Those principles are in line with what the Court of Appeal for Eastern Africa said in MBOGO v SHAH (1966) E A 93 at page 195,

I would, therefore, allow the appeal and grant the orders suggested by Hancox, J a in his judgment.

Dated and delivered at Nairobi this 15th day of June, 1984.

Z R CHESONI

AG JUDGE OF APPEAL

JUDGMENT OF NYARANGI, AG. J. A.

This is an appeal against the exercise of discretion of the trial judge.

The facts of the matter are adequately set out in the judgment of Hancox J A and so are the arguments and submissions of the for the parties.

The law on the matter is now settled. The English case of EL AMRIA (1981) 2 Lloyds Law Reports page 119 at page 123 as per Brandon L J, which has been applied in Kenya, has comprehensive principles that are accepted as applying to an application concerning the exercise of a Judge’s discretion. The leading local decision is the case of MBOGO v SHAH (1968) E a page 93 in which DE LESTANG v (as he then was) observed at page 94.

“I think it is well settled that this Court will not interfere with the exercise

of its discretion by an inferior court unless it is satisfied that its decision

is clearly wrong, because it has misdirected itself or because it has acted

on matters on which it should not have acted or because it has failed to take

into consideration matters which it should have taken into consideration and

in doing so arrived at a wrong conclusion.

It would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s decision have been different.

The trial judge’s concluding remarks in the judgment mentioned the death of the respondent and continued,

“…. but I understand his son with personal knowledge of the

issues is available in Kenya, as is the valuer who inspected the

farm at the termination of the defendant’s tenancy, and so whilst

this defendant cannot expect to have his judgment set aside on

anything like the “usual terms he should nevertheless have a last

chance to demonstrate his sincerely and a last chance to demonstrate

his sincerely and a chance to substantiate his conviction of defence on its merits…”

With respect to the trial Judge, that conclusion is out of place be earlier on the Judge had held that the application was devoid of me. The finding that the son of the original plaintiff could testify about.

It is apparent that the trial Judge was mesmerized by the observations of Griffihs J (of the High Court in England) that Mosdell J might have given £5000 more than he was entitled to the plaintiff.

The trial judge misdirected himself on the several essential matters and as a result acted on matters on which he should not have taken into consideration.

I agree with Hancox J A that some injustice might be committed if further litigation is permitted at this late stage. I concur with the remarks of Hancox J A on Section 35 of theLimitation of Action Cap. 22.

The trial judge’s decision is clearly wrong. I too would allow the appeal to the extent indicated by Hancox J A. I concur with the order proposed on costs.

Delivered at Nairobi this 15th day of June, 1984.

J O NYARANGI

AG JUDGE OF APPEAL