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Court of AppealPartially AllowedCivil Appeal No. 296 of 2006· [2008] KECA 168 (KLR)

Moijo Mataiya Ole Keiwua v Chief Justice of Kenya & 6 others [2008] KECA 168 (KLR)

Court of Appeal of Kenya
11 July 2008
Philip Kiptoo TunoiP.K. TunoiSBS.E.O. BosireEOE.O. O'Kubasu
3,882 words in judgment
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The bottom line

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Kenya's Court of Appeal cannot decide a High Court case that is still pending, and affidavits filed by outsiders without permission will be struck out.

What this practically means

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Executive summary

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The appellant, a Judge of Appeal facing a Tribunal established under section 62 of the Constitution of Kenya, appealed against a ruling of the High Court (Lesiit, Wendoh & Emukule, JJ.) of 14th June 2005 in a judicial review application expressed to be brought under sections 8 and 9 of the Law Reform Act and Order LIII of the Civil Procedure Rules. That ruling had allowed the affidavits of Stephen and Sylvester Ntutu - non-parties who had filed affidavits without leave - to remain on record, and granted the appellant an adjournment and leave to file replying affidavits. Before the Court of Appeal the appellant, through a fifty-ground memorandum, sought in prayers 1 to 4 that the appellate court take over the still-pending notice of motion, quash the ruling, declare the Tribunal's proceedings without jurisdiction and the Tribunal's appointment unconstitutional; alternatively, in prayers 5 and 6, that the Ntutu affidavits and his own replying affidavit be expunged. The Court, comprising Tunoi, Bosire and O'Kubasu, JJ.A., held in a single judgment of the court that it had no jurisdiction under section 3(1) of the Appellate Jurisdiction Act to take over a matter pending and undetermined before the High Court, and declined prayers 1 to 4. On the affidavit issue, applying its earlier decision in Jasbir Singh Rai v Tarlochan Singh Rai, it held it was highly irregular and improper for non-party busybodies to file such affidavits, and that the superior court had been improperly lenient. The appeal was allowed to the extent that the Ntutu affidavits and the appellant's replying affidavit were expunged from the record; costs of the appeal went to the appellant; and the notice of motion was directed to proceed before other High Court judges. The decision binds lower courts on both the limits of appellate jurisdiction over undetermined matters and the treatment of non-party affidavits.

Key legal issues

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01

Jurisdiction of the Court of Appeal to determine a pending but undetermined High Court application

Holding

The Court declined to take over the notice of motion; absent a High Court determination there is no appealable decision and no jurisdiction to grant the substantive judicial review reliefs sought in prayers 1 to 4.

Reasoning

Section 3(1) of the Appellate Jurisdiction Act confers jurisdiction to hear appeals from the High Court in cases where an appeal lies. The notice of motion dated 8th October 2004 had not been determined by the High Court; the ruling under appeal concerned only an adjournment and the status of certain affidavits. The Court found no compelling reasons to assume the pending matter, rejecting counsel's invitation to determine the judicial review application itself.

p. 5
02

Status of affidavits filed by non-parties without leave

Holding

Affidavits sworn and filed by non-parties who neither sought nor obtained leave, purportedly supporting an affidavit not yet in existence, are highly irregular and improper; the superior court erred in allowing them to remain on record, and they were expunged.

Reasoning

The Ntutu brothers were not parties to the proceedings or the Tribunal, never sought leave to be joined, and swore affidavits before the Gathenji affidavit they purported to support. The Court balanced the right not to be condemned unheard against orderly dispensation of justice, holding the superior court took too lenient a view; it also observed the affidavits betrayed a vendetta against the appellant. The appellant's own replying affidavit, which had responded to the irregular affidavits, was likewise expunged.

p. 6
03

Scope of the ruling under appeal

Holding

The formal order appealed from was narrow - that the Ntutu affidavits remain on record and that the applicant have an adjournment of ten days and leave to respond - and the Court confined itself to that order.

Reasoning

The Court reminded itself that Mr. Mwenesi had sought only an adjournment and directions; the appellant was granted exactly what he sought, and the appeal would have been unnecessary had the superior court not held the affidavits supported the Gathenji affidavit. The Court treated the affidavit issue as the main issue arising from the ruling and granted relief only on it.

p. 6

Legal principles established

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  • The Court of Appeal has no jurisdiction to take over and determine a notice of motion still pending and undetermined before the High Court; its appellate jurisdiction under section 3(1) of the Appellate Jurisdiction Act lies only against decisions of the High Court
  • A non-party who files affidavits in proceedings without leave of the court acts irregularly and improperly, and such affidavits may properly be expunged from the record
  • While the Constitution and public policy demand that no person be condemned unheard, the court must balance that against the equally important public policy that there be an orderly dispensation of justice

Court orders

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  1. 1.The affidavits of the non-parties Stephen Kanyinke Ole Ntutu and Sylvester Kitilai ole Ntutu sworn on 19th November 2004 are expunged from the record of the superior court
  2. 2.The appellant's replying affidavit sworn on 24th June 2005 is expunged from the record of the superior court
  3. 3.The Notice of Motion dated 8th October 2004 shall proceed to hearing in the superior court before any judges excluding Lesiit, Wendoh & Emukule, JJ.
  4. 4.Costs of the appeal are awarded to the appellant

Authorities

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Legislation

  • Law Reform Act (Cap. 26, Laws of Kenya)Sections 8 and 9
  • Civil Procedure RulesOrder LIII rules 2 and 3; Rule 3
  • Constitution of KenyaSection 62
  • Appellate Jurisdiction Act (Cap. 9, Laws of Kenya)Section 3(1), (2) and (3)
  • Court of Appeal RulesRules 1(2) and 31

Cases cited (2)

  • R. V. Industrial Injuries Commissioner Ex Parte Amalgamated Engineering Union
    [1966] 1 All E.R. 97
  • Jasbir Singh Rai & Others v Tarlochan Singh Rai & Others
    Civil Application No. NAI. 307 of 2003 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 1298 of 2004
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act (Cap 9, Laws of Kenya)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Moijo Mataiya Ole Keiwua v Chief Justice of Kenya & 6 others [2008] KECA 168 (KLR)", Case Analysis (2008). Civil Appeal No. 296 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/168/eng@2008-07-11

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