Mbogo & Another – v- Shah, [1968] EA 93

 Mbogo & Another – v- Shah, [1968] EA 93, where it was held that:

“An appellate court will interfere if the exercise of the discretion is clearly wrong because the Judge has misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.”

In Mbogo v Shah [1968] EA 93, at page 95, Sir Charles Newbold P expressly approved Harris J’s test, of the principles it was necessary to consider in the exercise of the judicial discretion as to whether to set aside a judgment or not, as follows:

“Whether … in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the judgment, if necessary, upon
terms to be imposed.”

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.