On finality of judgments: The Case of Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah ([2025] KECA 1264)

Case Citation: Dhiman v Shah (Civil Appeal E380 of 2023)
Court of Appeal at Nairobi
Judgment date: 11 July 2025
Judges: P.O. Kiage, W.K. Korir & J.M. Ngugi (Full Case available here)

⚖️ Background & Procedural History

• High Court Suit (1999):
  Keshavji Jivraj Shah sued Dhiman for recovery of a Ksh 7 million loan (plus interest), secured by a property charge. Dhiman failed to file a defense, resulting in an interlocutory judgment on 16 Sept 1999 for ~Ksh 17 million, at 36% interest (See Case here,).
• Execution & Asset Sale:
  The plaintiff sought execution, purchased Dhiman’s property at auction (Ksh 17 million), and obtained a Vesting Order on 13 June 2006. An eviction order followed ( Check Case here).
• High Court Review Application (2006):
  Dhiman applied to review the ex parte judgment and sought leave to file a defense. He claimed he had been misled into settlement talks, paid Ksh 3 million, and argued duress, illegality, unconscionable interest, and improper sale. Kasango J dismissed the application in December 2006 (See Case here).
• Court of Appeal – First Proceedings – 2010 & 2015:
  Leave to amend the appeal was granted in 2010, allowing Dhiman to challenge the ex parte judgment (2019 Judgment, See Judgment here). The 2015 decision reaffirmed factual history and interlocutory judgment events.
• High Court – Application to Strike Defense & Confirm Decree (2018):
  Shah sought to strike out Dhiman’s defense and counterclaim. The court upheld the defense as raising triable issues and emphasized substantial justice over procedural technicalities (See Case here).
• High Court Judgment (2019):
  Justice Makau reviewed pleadings, reaffirmed interlocutory judgment, and preserved Dhiman’s chances to defend—subject to the Court of Appeal outcome (Full Case).

 The Appeal to the Court of Appeal (2025)

Issue before the Court:

i.                      Whether the High Court rightly refused to review the ex parte interlocutory judgment and set aside subsequent orders, given alleged irregularities, duress, and improper execution/Whether the High Court erred in refusing to review and set aside the interlocutory judgment.

ii.                    Whether the appellant had established grounds for review under Order 45 Rule 1 of the Civil Procedure Rules.

iii.                  Whether enforcement of the judgment violated principles of fairness and justice.

 Rules Applied

• Order 45 Rule 1, Civil Procedure Rules:
  Grounds for review:
• Discovery of new and important matter or evidence not previously available.
• Mistake or error apparent on the face of the record.
• Any other sufficient reason.
• Principles of natural justice and equity.

Key Legal Considerations:

• Grounds for review under Civil Procedure Rules—whether there was “new evidence,” “mistake apparent on face of record,” or delay “without unreasonable delay”.
• Whether Dhiman had demonstrated valid grounds (duress, unconscionable mortgage, illegality, misuse of process) warranting relief.
• Weighed principles of finality of judgments and public interest against ensuring substantive justice.

 Court's Reasoning

• The Court emphasized the finality of judgments, noting that Dhiman had not acted promptly or with due diligence.
• Allegations of duress and unconscionable conduct were not substantiated with sufficient legal or evidentiary basis.
• The interest rate, though high, was agreed upon and not illegal per se.
• There was no error on the face of the record, nor any newly discovered evidence to justify review.

 Court’s Holding/Decision (11 July 2025):

• The Court dismissed the appeal./ The Court concluded Dhiman's review grounds were unsustainable/ Appeal dismissed with costs to the respondent.)
• Found no error or sufficient new evidence to warrant review./ They found no mistake apparent and no new evidence that he had exercised due diligence to bring before the court
• Upheld the interlocutory judgment, execution, and vesting orders./ the application was dismissed, upholding the interlocutory judgment and vesting orders./ Interlocutory judgment (1999) remains effective.

• Execution orders, property sale, Vesting Orders, and eviction stay in force. (i.e. Judgment and orders of the High Court affirmed.)

Legal Implications

• Strict procedural standards: Ex parte judgment reviews require clear, fresh evidence or obvious errors. Reinforces the limited scope of review and strict standards under Order 45 of the Civil Procedure Rules.
• Finality vs justice: Courts reinforce the need to adhere to rules to preserve public confidence in process. It Underscores courts’ preference for finality and certainty in litigation, especially where execution has occurred.
• Necessity of timely challenge: Delays and engaging in informal negotiations can impede review applications. It Highlights the importance of procedural compliance and acting without delay.

On court’s discretion in divorce matters - The Case of Byamugisha James v Tushemerirwe Specioza (Divorce Cause No. 1 of 2025) [2025] UGHC 532

High Court of Uganda (Family Division, Kabale) — Karoli Lwanga Ssemogerere, J (Full Case available Here)

Brief Facts

·         Byamugisha James and Tushemerirwe Specioza were married in 2007 under Catholic rites and have four children, ranging in age from 4 to 16. However, their marriage began to deteriorate over the years. Petitioner (an electrician) and respondent (a home maker) have been living apart for two years. The petitioner filed for divorce in 2025, citing grounds of cruelty, desertion, and change of religion. He alleged that the respondent had abandoned their marital home and converted to Pentecostalism. The respondent, on the other hand, contested the allegations, arguing that the petitioner had abandoned the family and had not been involved in the children's lives for over two years.

·         The couple had been living separately for almost two years, and there were disputes regarding the custody of the children, division of matrimonial property, and maintenance.

• Inventory of assets filed April 2025; social welfare officer assessed children's wellbeing.

Issues for determination:

1. Are statutory grounds met for divorce?
2. Who should have custody of the children?
3. How should matrimonial property be divided?

4.      What reliefs (maintenance, alimony) are appropriate?/ What financial support should be provided, both in terms of maintenance and alimony?

Applicable Law(s)

• Grounds under Section 4 of the Divorce Act: cruelty, desertion, change of religion to another with remarriage.
• Court’s inquiry powers under Section 6, including counter‑charges.
• Children’s Act and Constitution Articles 31 & 21 govern custody and maintenance.
• Property division under Section 27 and constitutional equality — non‑monetary contributions recognized.

Summarised Application / Analysis

• Cruelty: Evidence from children and parties indicated emotional and physical suffering, including allegations of threats and suspected witchcraft — the court held that met the standard for cruelty.
• Desertion: The parties had denied conjugal life and lived separately; child's testimony confirmed father spent long stretches away — court determined desertion was petitioner’s choice and not autonomous ground
• Change of religion: Since both Catholic and Pentecostal faiths are Christian and there was no remarriage, this ground failed.
• Custody: Granted joint custody; alternating holidays and equal input on education and upbringing; primary residence with respondent but responsibilities shared.
• Matrimonial Property: Petitioner owns matrimonial home (Block 3, Plot 680). Court split proceeds upon sale when youngest turns 18: 70% to petitioner, 30% to respondent.
• Alimony & Maintenance: Petitioner pays UGX 200,000/month alimony; both share ongoing maintenance; court retains review power.

Detailed Legal Analysis:

• Grounds for Divorce:
  The court examined the grounds for divorce under Section 4 of the Divorce Act, which includes cruelty and desertion. It found that cruelty was evidenced through emotional harm, threats, and allegations of witchcraft. Although the respondent had converted to Pentecostalism, the court ruled that there was insufficient proof that this constituted a significant breakdown of the marriage under the statutory grounds.
• Custody of Children:
  The court granted joint custody of the four children, with the primary residence being with the respondent. However, the court emphasized shared responsibilities for the children's upbringing and education. The petitioner was granted significant rights regarding visitation, and the decision allowed both parents to make decisions about their children's welfare jointly.
• Division of Matrimonial Property:
  The court ordered that the matrimonial property, specifically the family home, be sold once the youngest child turned 18. The proceeds would be split, with the petitioner receiving 70% of the sale price and the respondent receiving 30%. The division took into account both monetary and non-monetary contributions made by both parties during the marriage.
• Maintenance and Alimony:
  The court ordered the petitioner to pay UGX 200,000 per month as alimony. The petitioner was also responsible for maintaining the children, including providing for their school fees and other essential needs. The court retained the ability to review the financial arrangements as circumstances change.

Court’s Holding:

• The court granted a decree nisi for divorce, with the final decree to be made absolute after six months.
• Custody was awarded jointly, with the children residing primarily with the respondent.
• The matrimonial property was divided, and financial maintenance was awarded to the respondent.
• The petitioner was ordered to pay monthly alimony.

Significance:

The case highlights the court’s discretion in divorce matters, particularly in dealing with cruelty and desertion. The case also underscores the importance of joint custody in Uganda's family law system, reflecting the court's emphasis on both parents' involvement in their children's lives. Furthermore, the case reaffirms the principle of equitable division of matrimonial property, taking into account both financial and non-financial contributions.

• Reinforces that cruelty includes emotional harm (e.g., threats, witchcraft claims)
• Clarifies desertion is not automatic ground unless unprovoked
• Emphasizes equality in property division — acknowledges non‑monetary contributions
• Strengthens joint custody framework and states court’s continued role in oversight

The right to property protection & state actions affecting private property must be legally and procedurally justified: The Case of Kenya Wildlife Service v Sea Star Malindi Ltd (Petition No. E022 of 2024)

Legal Summary of the Case: Kenya Wildlife Service v Sea Star Malindi Ltd
Supreme Court of Kenya Petition No.: E022 of 2024 [2025] KESC 42 (1 July 2025)
Date of Judgment: 1 July 2025
Bench: Koome CJ, Mwilu DCJ, Ibrahim SCJ, Wanjala SCJ, Lenaola SCJ, Ouko SCJ

1. Background

• In 1997, KWS stopped Sea Star Malindi Ltd from constructing a hotel near Malindi Marine Park, citing environmental protection concerns.
• Sea Star sued KWS for violating its property rights. The Environment and Land Court (ELC) awarded Ksh 120 million in compensation and damages.
• The Court of Appeal upheld the ELC ruling in 2024.
• KWS appealed to the Supreme Court, arguing procedural and substantive errors.

2. Issues for Determination

1. Was the Court of Appeal correct in affirming KWS’s liability and the damages awarded?
2. Was there a risk of double compensation, considering Sea Star had previously been awarded Ksh 709 million in a separate case involving Kilifi County Council?
3. Was the Court of Appeal’s handling of the case procedurally sound?

3. Judgment Summary

Court's️ Findings:

• The Court quashed the Ksh 93 million award issued by the Court of Appeal.
• Held that the Court of Appeal erred by affirming damages without fully analyzing liability and potential overlap with previous compensation.
• Found that granting relief before determining liability was premature and inconsistent with principles of due process.
• Emphasized the importance of avoiding “double compensation” from public bodies for the same harm.

 Orders:

• The case was remitted back to the Court of Appeal for:
• A fresh determination of KWS’s liability, and
• Reassessment of damages, with caution against duplication of prior awards.
• Costs were not awarded, pending the fresh appellate outcome. 

4. Legal Significance

 Constitutional & Administrative Law:

• Reinforces the right to property protection under Article 40 of the Constitution.
• Clarifies that state actions affecting private property must be legally and procedurally justified.

Damages & Double Recovery:

• Sets precedent that plaintiffs must disclose all related compensation claims.
• Courts must factor in prior awards to ensure that litigants are not compensated twice for the same loss.

Procedural Justice:

• Confirms that liability must be conclusively determined before awarding compensation.
• Underlines the role of appellate courts in carefully vetting the foundation of remedies granted by lower courts. 

Conclusion

The Supreme Court did not absolve KWS of liability but required a fresh, full reconsideration of both fault and compensation. The decision highlights judicial caution where public funds are involved and ensures fairness to both private litigants and state bodies.

On termination during the probationary period - The Case of Mwangi v Kevian Kenya Limited [2025] KEELRC 2032

Brief Facts:

In the case, the Claimant was terminated for poor performance and insubordination. The Claimant, Mr. Mwangi, was employed by Kevian Kenya Limited under a probationary contract that allowed either party to terminate the employment by giving two weeks’ notice or payment in lieu. During his probation, the Claimant was terminated for poor performance and insubordination without being given a hearing or an opportunity to respond to the allegations. The Respondent terminated the Claimant’s employment without adhering to procedural safeguards under Section 41 of the Employment Act, arguing that the Contractual probationary terms excluded such requirements. The Respondent argued that Section 41 of the Employment Act, which provides for procedural fairness in termination, did not apply due to the probationary nature of the contract and the agreed termination clause.

 

Issues for determination:

1. Does Section 41 of the Employment Act apply to probationary employees?
2. Was the termination of the Claimant procedurally fair?

 

Court’s Holding:

The court held that the Respondent’s reliance on the probationary clause to avoid procedural fairness was misplaced. It affirmed that while probationary contracts allow for easier termination, they do not exempt employers from complying with the mandatory provisions of Section 41. The court retaliated that even employees on probation are entitled to procedural fairness before termination.  

The Court held that:

• Section 41 of the Employment Act applies to all employees, including those on probation.
• Probationary contracts do not exclude employees from the right to procedural fairness.
• The Respondent failed to follow due process by not informing the Claimant of the allegations and not giving him an opportunity to be heard.

 

Court’s Decision:

• The Court found the termination unfair and procedurally flawed.
• The Respondent’s reliance on the probation clause to bypass statutory obligations was misplaced.
• The Claimant was entitled to remedies for unfair termination, although the nature and extent of compensation would reflect his probationary status.

 

Legal Principle:

Probationary employment contracts do not override the mandatory provisions of Section 41 of the Employment Act. Procedural fairness is a right afforded to all employees, including those on probation.

Key Takeaways from the Decision:

1. Probation Does Not Eliminate Procedural Fairness:
• The court made it clear that being on probation does not strip employees of their right to fair hearing.
• Employers must still adhere to Section 41, which requires that:
• The employee be informed of the reasons for termination.
• The employee be given an opportunity to respond before termination.
2. Contractual Terms vs. Statutory Rights:
• The employer’s argument that the probation clause in the contract allowed for termination without procedural safeguards was rejected.
• The court emphasized that contractual terms cannot override statutory protections under the Employment Act.
3. Termination for Cause Still Requires Due Process:
• Since the termination was based on poor performance and insubordination (i.e. misconduct or incapacity), it triggered Section 41 obligations, even during probation.
4. Legal Implication for Employers:
• Employers must conduct a fair process before terminating any employee, including those on probation.
• Failure to follow due process can render a termination unfair, even if the probation clause permits notice or payment in lieu.

️Broader Impact:

This judgment reinforces employee protections and offers a caution to employers not to assume that probation equals “no rules.” It aligns with the growing body of Kenyan jurisprudence that upholds constitutional fairness in employment relationships, even at early stages.

 

Read the full case Here

Legal Review: Insolvency procedures in Kenya

What is insolvency?

An individual is insolvent if he/she is unable to discharge his or her debts as they fall due.

A company is insolvent if it does not have enough assets to cover its debts, that is, the value of its assets is less than the value of its liabilities, or if it is unable to pay its debts as they fall due. Generally, put, therefore, insolvency is the inability to pay debts. Insolvency in Kenya is governed by the provisions of the Insolvency Act of 2015.

There are several procedures that are provided under the law once an individual or a company goes through insolvency. Sometimes the procedures enable the individual or the company to return to solvency. This article explores the procedures available to an individual who has unfortunately found himself or herself in debt.

Insolvency of Natural Persons

The meaning of a natural person is a living human being as distinguished from a company or a corporation created by law. The term also denotes a sole proprietor or an individual as understood in common parlance.

The Insolvency Act avails four different types of insolvency procedures available to the individual depending on their circumstances. These are:

Bankruptcy
Individual Voluntary Arrangement
No-Asset Procedure
Summary Installment Order
Bankruptcy

Bankruptcy is a legal process where the debtor is declared as being unable to pay his debts. The affairs of the debtor (i.e., debtor’s assets and liabilities) are then placed before a bankruptcy trustee in the interests of his creditors generally. The bankruptcy trustee will either be the Official Receiver or any Insolvency Practitioner who is a professional licensed to practice insolvency. Bankruptcy proceedings can be initiated by a creditor or by the debtor himself. The process is commenced by the debtor or creditor filing a petition for bankruptcy. The petition is accompanied by an affidavit, a statement of financial position and an application for the court to appoint a suitable trustee over the debtor’s estate.  In a bankruptcy, the bankrupt loses any rights to his property apart from his personal effects and tools of trade.

The bankruptcy process is meant to protect genuine people who have unfortunately found themselves in debt.  A bankruptcy order bars creditors from harassing the debtor and intermeddling with his properties. A bankruptcy order can be lifted if the debtor pays off his debts. The bankrupt will automatically be discharged from bankruptcy after three years whether the debt is paid or not. Once discharged, the bankrupt is released from his bankrupt debts with some exceptions.

Individual Voluntary Arrangement

The Individual Voluntary Arrangement is one of the three alternatives to bankruptcy, the other two being the No-Asset Procedure and the summary installment order which are discussed briefly in the following paragraphs. It is a less formal procedure, is more flexible and it varies on a case to case basis depending on the nature of the proposal. An individual voluntary agreement cannot affect the rights of a secured creditor or preferential creditor unless they consent to it.

Under ordinary circumstances, the debtor makes a proposal with the assistance of a licensed insolvency practitioner. An application is then made to court for the court to issue an interim order. The court may at this point stay any other legal procedures against the debtor and/or his property. The Insolvency Practitioner must prepare a report to the court on the proposal. If the report is positive, then the court will allow the insolvency practitioner to convene a meeting of creditors. If the report is adverse, then the interim order ceases.

A creditors meeting is thereafter held which considers the proposal and the report of the creditors. The proposal is successful if accepted by 75% of the creditors in value of the debt held at a meeting. The creditors also appoint the Supervisor who implements the proposal and reports to the court.

The IVA is a fairly flexible procedure, without publicity unlike bankruptcy. It also carries less social stigma associated with bankruptcy. It may also be less costly to administer and therefore likely to increase returns to creditors. A successful voluntary agreement binds all creditors regardless of whether they voted for it or not.

No-Asset Procedure

No-Asset Procedure is an arrangement which applies when a debtor has no realizable assets to pay off the debt. The procedure is applicable where the debt is more than Kshs. 100,000/- and less than Kshs. 4,000,000/-. The procedure offers similar protection but which is not identical to bankruptcy. It allows the debtor to sort out his/her financial affairs and get back on his feet without entering formal bankruptcy.

Once a debtor is admitted under this procedure, he/she cannot take up new debt during the period of admission. Additionally, the debtor is obligated to pay alimony, child maintenance and education loans for a dependent child or step child. The No-Asset Procedure is, however, not available to a person who has been previously declared bankrupt or admitted to the same procedure.

A debtor is considered admitted to the No-Asset when the Official Receiver sends out the notices in the prescribed form. The admission is also publicized in the Kenya Gazette. Once admitted to this procedure, the creditors are barred from taking any steps to enforce the debts other than the ones contemplated above.

Summary Installment Orders

A summary installment order is an order from the Official Receiver directing the debtor to pay his debts in full and/or installments to an extent the Official Receiver considers practicable and depending on the peculiar circumstances of each case. A supervisor who is an insolvency practitioner oversees the process. The Official Receiver makes the order upon the application of the debtor or creditor and with the consent of the debtor. Currently the threshold of debt that is prescribed under this procedure is Kshs 500,000/-. Upon approval of the proposal, the debtor is required to pay off his debts within three years or within 5 years if agreed with the supervisor.

The legal principles that relate to succession law in Kenya with reference to the context of estate administration gaps

Key Legal Principles & Comparisons

1. Principle of Lapse of a Grant (Grant Becomes Inoperative)

• Law Applied: Section 76(e) of the Law of Succession Act.
• Explanation: When all administrators of an estate die before completing the distribution, the grant becomes “inoperative”.
• Implication: A new grant must be issued—not by substitution, but by issuing letters of administration de bonis non (Latin: “of the goods not yet administered”).

📌 Comparison: This principle mirrors decisions in other jurisdictions like England & Wales, where courts also issue administration de bonis non to fill in the gap when prior executors die.

 

2. Inapplicability of Substitution (Section 81 LSA)

• Law Applied: Section 81 – applicable only if at least one administrator survives.
• Key Ruling: If all administrators are deceased, Section 81 does not allow any of them to be substituted.

📌 Why it matters: Many applications wrongly invoke substitution in these cases. This judgment clarifies the correct remedy under Kenyan law.

 

3. Power of Court to Appoint Administrator (Section 66 LSA)

• Courts have the power to appoint an administrator suo motu (on their own motion) if the proper procedure is unclear or unprovided.
• In this case, the court appointed Monica Rukwaro using this discretionary power.

📌 Relevance: Ensures continuity of estate administration even where procedural gaps or misapplications exist.

 

4. Rule 49 and Procedural Flexibility

• Rule 49, often a "catch-all" for applications not specifically covered, was used here—though technically incorrect, the court accepted it.
• The court relied on Article 159(2)(d) of the Constitution (substance over form), reinforcing that procedural technicalities shouldn’t defeat justice.

📌 Impact: Encourages courts to prioritize substantive rights over rigid technical compliance, especially in family and succession matters.

 

5. Consent of Beneficiaries

• The Court emphasized the need for written consents from other heirs when appointing a new administrator.
• Monica Rukwaro’s application was supported by signed consents, bolstering her eligibility.

📌 Best Practice: When applying for administration de bonis non, always include affidavits or consents from all known beneficiaries to avoid disputes.

 

💡 Practical Takeaways

Situation	Correct Legal Action	Wrong Action to Avoid
All administrators die	Apply for letters of administration de bonis non under S.76(e)	Do not apply for substitution under S.81
Unsure of procedure	Use Rule 49 + invoke Article 159	Do not rely solely on technical rules
No administrator left	Court may appoint new one under S.66	Do not assume the estate is frozen permanently

 

Legal Significance of the Principles:

This case:

• Clarifies successor appointment rules under Kenyan succession law.
• Demonstrates judicial flexibility and prioritization of equitable administration.
• Provides a practical precedent for estate lawyers, especially in family disputes or protracted estate delays.