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Court of AppealPartially AllowedCivil Appeal No. 228 of 2002· [2004] KECA 2 (KLR)

Grace Ndegwa & others v Attorney General [2004] KECA 2 (KLR)

Court of Appeal
12 November 2004
ROR.S.C OmoloJOJ.W. Onyango OtienoWDW.S. Deverell
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal revived a suit against the government, ruling that minor defects in a statutory notice should not kill a legitimate case.

What this practically means

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Executive summary

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This was an appeal by former civil servants, acting through the unregistered Kenya Retrenched Workers Association and named individuals, against the decision of Rimita, J striking out their entire suit against the Attorney General on a preliminary objection. The High Court had held that the statutory notice under section 13A of the Government Proceedings Act was invalid, that there was no relationship between the notice and the Nairobi suit, and that the verifying affidavit sworn by Grace Ndegwa was incurably defective. The Court of Appeal allowed the appeal. It held that although the unregistered association could not sue, the notice annexed a list of the individual claimants so the Attorney General knew who intended to sue him; under section 72 of the Interpretation and General Provisions Act a document is not void for deviation from a prescribed form where the deviation does not affect substance or mislead. The variance between the venue stated in the notice (Nakuru) and the suit filed (Nairobi) was immaterial for the original 1,484 claimants. Declaratory relief fell outside section 13A(1) by dint of section 13A(3), so parts of the claim needed no notice at all, and the entire suit should have gone to full hearing rather than being struck out. The verifying affidavit was valid because Grace Ndegwa was among those authorized to deal with the advocates. Invoking Mukisa Biscuit and D.T. Dobie, the Court discouraged guillotining cases on technicalities. The appeal was allowed, the orders of the superior court were set aside, and the suit was remitted for hearing, with no order as to costs because the appellants largely caused the defect.

Key legal issues

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01

Validity of the statutory notice issued in the name of an unregistered association

Holding

The notice was not fatally invalid because it annexed and identified the individual claimants, satisfying the purpose of the notice despite the association being unregistered

Reasoning

The unregistered association could not sue, and to that extent the notice was defective. However, the notice annexed a list of the individual claimants, so the Attorney General was made aware of the actual claimants and their names. The list was part of the notice and had to be read with it as one document; read together, the purpose of the notice was satisfied and the deviation was immaterial.

p. 3
02

Effect of the notice stating the suit would be filed at Nakuru while it was filed at Nairobi

Holding

The variance did not invalidate the suit because the original 1,484 claimants named in the notice were among the claimants in the Nairobi suit

Reasoning

The initial 1,484 claimants whose names were attached to the notice remained claimants in the Nairobi suit; any doubt could only be entertained in respect of additional claimants. The change of venue and the withdrawal of the Nakuru suit did not sever the relationship between the notice and the Nairobi suit as to the original claimants.

p. 3
03

Whether the verifying affidavit sworn by Grace Ndegwa was defective

Holding

The affidavit was valid; Grace Ndegwa was among those authorized to deal with the advocates, and non-signature by all claimants could not deny justice to those who signed

Reasoning

The claimants had appointed Juma Kiplenge and Associates as advocates and designated eight people, including Grace Ndegwa, to deal with the advocates. Her swearing of the verifying affidavit flowed from that authority. The Judge's finding that not all appellants signed the authority was not a proper ground for denying justice to those who did sign.

p. 4
04

Striking out the entire suit on a preliminary objection

Holding

Striking out was erroneous; claims for declaratory relief required no notice and the suit should have gone to full hearing

Reasoning

The declaratory relief sought was outside section 13A(1) by virtue of section 13A(3), so some claimants could sue without notice. The court could not strike out parts of the reliefs and leave others, nor strike out some claimants' cases while sustaining others. Technicalities would result in injustice; the entire case should have gone to full hearing.

p. 3

Legal principles established

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  • A statutory notice of intention to sue is not void for deviation from the prescribed form where the deviation does not affect the substance of the document and is not calculated to mislead, under section 72 of the Interpretation and General Provisions Act
  • Declaratory relief is excluded from the notice requirement in section 13A of the Government Proceedings Act by dint of section 13A(3)
  • Striking out suits on preliminary objections on technicalities should be discouraged; a case should so far as possible be heard on its merits where the spirit or purpose of a document is clear and no prejudice results

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the superior court striking out the suit set aside
  3. 3.Suit remitted to the superior court for hearing
  4. 4.No order as to costs

Authorities

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Legislation

  • Government Proceedings Actsection 13A(1)
  • Government Proceedings Actsection 13A(2)
  • Government Proceedings Actsection 13A(3) and proviso
  • Interpretation and General Provisions Actsection 72
  • Civil Procedure RulesOrder VII rule 2

Cases cited (2)

  • Mukisa Biscuit Co. vs. West End Distributors
    (1969) EA 696
  • D.T. Dobie Co. Ltd. vs. Muchina & Others
    Civil Appeal No. 37 of 1978 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 1649 of 2001
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Grace Ndegwa & others v Attorney General [2004] KECA 2 (KLR)", Case Analysis (2004). Civil Appeal No. 228 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/2/eng@2004-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.