Hawkind Corporation (The Owner of the MV Kairo's) v African Marine & General Engineering Co. Ltd (Civil Appeal E019 of 2021) [2024] KECA 496 (KLR) (26 April 2024) (Judgment)

Key Facts

Transaction Type

Issues

• The court analyzed whether the trial judge disregarded the principle that striking out a pleading should be a measure of last resort, given the Appellant's demonstrated efforts to comply and the case's merits.
• The court examined whether the trial judge erred by relying on matters not pleaded or canvased by the parties, thereby denying the Appellant an opportunity to address the alleged complacency.
• The court evaluated whether the trial judge erred in not recognizing that a litigant's failure to comply with court orders should not bar them from pursuing their claim unless the non-compliance was wilful.
• The court determined whether the trial judge violated constitutional principles by prioritizing procedural technicalities over the administration of substantive justice under Article 159(2)(b) of the Constitution.
• The court assessed whether the trial judge's exercise of discretion in dismissing the application was justified, considering whether he misdirected himself in law, misapprehended facts, or his decision was plainly wrong.

Holdings

• The Court of Appeal dismissed the respondent's application to strike out the appeal, ruling that the Record of Appeal was served within the required time frame via email on 2nd March 2021. The court emphasized that the respondent's uncorroborated denial of receipt without challenging the email's authenticity was insufficient to justify striking out the appeal.
• The Court of Appeal allowed the substantive appeal, set aside the trial Judge's ruling of 20th May 2019, and reinstated the Appellant's suit for further hearing before a different judge. The court found the trial Judge misdirected himself by relying on unpleaded findings of complacency and failed to consider the interests of justice in hearing a high-value maritime claim on its merits.

Remedies

• The Court of Appeal allows the appeal and sets aside the trial judge's ruling, reinstating the Appellant's suit for further hearing before a different judge.
• The court orders that each party shall bear their own costs related to this appeal and the Appellant's application at the High Court.

Legal Principles

• The Court emphasized that striking out a pleading should be a 'measure of last resort,' citing Uchumi Supermarket Limited & Sidhi Investment Limited [2019] eKLR. This principle was invoked to argue that procedural defaults should not bar a party from accessing justice, especially where compliance was later demonstrated and no prejudice resulted.
• The Court applied the constitutional principle under Article 159(2)(b) of the Constitution of Kenya, 2010, emphasizing that justice should not be sacrificed at the altar of procedural technicalities. This principle was central to the Appellant's argument that the trial court erred in dismissing the suit for non-compliance with pre-trial orders, particularly given the absence of prejudice to the Respondent and the Appellant's efforts to comply.
• The Court outlined the grounds for interfering with a trial judge's discretionary decision, referencing the decision in United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] eKLR. These include misdirection in law, misapprehension of facts, consideration of irrelevant factors, failure to consider relevant factors, and a decision that is plainly wrong. The Court applied these principles to assess whether the trial judge's dismissal of the Appellant's application for reinstatement was justified.

Precedent Name

• United India Insurance Co Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co. Ltd vs. East African Underwriters (Kenya) Ltd
• Mbogo & Another vs Shah
• Jabane vs. Olenja
• Selle & Another vs. Associated Motor Boats Co. Ltd & Others
• Uchumi Supermarket Limited & Sidhi Investment Limited
• Mohammed & Another vs. Haidara
• D. Chantulal K. Vora & Co. Limited vs Kenya Revenue Authority
• Eastern Radio Service vs. Tiny Tors
• Richard Ncharpi Leiyagu vs. Independent Electoral and Boundaries Commission & 2 others

Cited Statute

• Court of Appeal Rules, 2010
• Civil Procedure Act
• Civil Procedure Rules, 2010
• Court of Appeal Rules, 2022
• Constitution of Kenya, 2010

Judge Name

• P NYAMWEYA
• GV ODUNGA
• KI LAIBUTA

Passage Text

• No doubt the appellant or its representatives should have been more prudent or keen in the prosecution of its suit. However, as at 3rd February 2012, the appellant was still inviting the respondent to fix a hearing date and showing attempts to prosecute the suit. This was before the suit's dismissal on 10th February 2012. In our view, there cannot be said to be an inordinate delay in the scenario as such. The attempts to set the suit down for hearing ought to count for something and it was wrong for the High Court to brush them off as inconsequential.
• We are satisfied that this appeal has merit and justify our interference with the trial Judge's exercise of discretion for the foregoing reasons. We accordingly allow the appeal and hereby set aside the ruling and orders given by the trial Judge on 20th May 2019 in Mombasa High Court Civil Case No. 40 of 2008. We accordingly grant the Appellant the prayer sought in its Notice of Motion dated 24th October 2018 filed in the trial Court with the result that the Appellant's suit in Mombasa High Court Civil Case No. 40 of 2008 is hereby reinstated for further hearing before a Judge other than P.J. Otieno J.
• We find that there is no legal basis or evidence on record to support the findings that the Appellant was complacent or otherwise to blame for the delay... the explanation offered by the Appellant's advocate of efforts at compliance was indeed borne out by the record.

Damages / Relief Type