[1999] KECA 131 (KLR)
The Court of Appeal held that the High Court judge exercised her discretion properly in setting aside the ex parte judgment and granting the respondent leave to defend on condition. The appellate court found no error in principle or otherwise in the exercise of discretion by the trial judge. The Court emphasized...
Source-derived case information.
- Citation
- [1999] KECA 131 (KLR)
- Parties
- Appellant: Trans-National Bank Limited; Respondent: William Koskei Akui
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 216 of 1998
- Procedural Posture
- Civil Appeal / Appeal From Ruling and Order of the High Court
- Outcome
- appeal dismissed
- Legal Topics
- Setting Aside Ex Parte Judgment, Leave to Defend, Exercise of Discretion, Appellate Review of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans-National Bank Limited
Appellant
William Koskei Akui
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling and Order of the High Court
Legal Issues
- 1 Whether the High Court properly exercised its discretion in setting aside the ex parte judgment and granting leave to defend on condition.
- 2 Whether the appellate court should interfere with the exercise of discretion by the trial judge.
Ratio Decidendi
The Court of Appeal held that the High Court judge exercised her discretion properly in setting aside the ex parte judgment and granting the respondent leave to defend on condition. The appellate court found no error in principle or otherwise in the exercise of discretion by the trial judge. The Court emphasized that appellate interference with discretionary decisions is only warranted where there is a clear misdirection or error, which was not demonstrated in this case. The absence of prejudice to the appellant further supported the decision not to interfere. Accordingly, the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU (CORAM: OMOLO, TUNOI & LAKHA, JJ.A.) CIVIL APPEAL NO. 216 OF 1998
BETWEEN
TRANS-NATIONAL BANK LIMITED ...........................APPELLANT AND WILLIAM KOSKEI AKUI ...................................RESPONDENT
(An appeal from the Ruling and Order of the High Court of Kenya at Eldoret (Hon. Lady Justice R. Nambuye) dated 26th June, 1998 in H.C.C.C. NO. 263 OF 1996) *************** JUDGMENT OF THE COURT
This is an appeal against the Ruling of the Superior Court (Nambuye, J) delivered on 30th June, 1998 whereby she set aside the ex parte judgment and gave leave to the respondent to defend or file defence on condition. This was clearly in exercise of her discretionary powers. We have not been persuaded that the learned judge in the exercise of her discretionary power committed any error in principle or otherwise. If anything, it is conceded that no prejudice would be occasioned by the order of the learned Judge. All in all we are not satisfied that this matter calls for any interference from this Court on the facts of this case.
Accordingly, the appeal is dismissed but with no order as to costs.
Dated and delivered at Nakuru this 22nd day of September, 1999.
R. S. C. OMOLO
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JUDGE OF APPEAL
P. K. TUNOI
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JUDGE OF APPEAL
A. A. LAKHA
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR